New Jersey State maintains pretrial intervention program (“PTI”). The program allows individuals to avoid prosecution for the charges pending against them. PTI goal is to rehabilitate individuals and return them to the community without criminal conviction. The program is not for everyone, and has a list of limitations and criteria outlined under N.J.S 2C:43-12. Additional PTI criteria requirements have been promulgated by the Supreme Court under Rule 3:28, which among other things adds time requirements for PTI submission:
Application for pretrial intervention shall be made at the earliest possible opportunity, including before indictment, but in any event no later than twenty-eight days after indictment. (emphasis added).
Is there anything that can be done by individuals, that are otherwise PTI eligible, but missed the 28-day filing time frame? One obvious answer is “it depends” on the circumstances of that individual. The “it depends” phrase also implies that the 28-day rule can be applied flexibly. The extend of flexibility depends on the prosecutor.
Prosecutor has great discretion to decide whether a defendant should be admitted into PTI. State v. Wallace, 146 N.J. 576, 582 (N.J. 1996). The discretion includes prosecutorial consent to apply for PTI “out of time.” State v. Horner, 2012 WL 469721 (App. Div. 2012). (“The prosecutor consented to Pritchett [defendant] applying to PTI out of time …”); see also State v. Ponder, 2011 WL 5838729 (App. Div. 2011) (“State agreed to recommend a sentence of probation and to permit defendant to apply to the PTI program out of time.”), State v. Alvarez, 2009 WL 4250775 (App. Div. 2009) (“prosecutor consented to allow defendant to apply to PTI out of time”). New Jersey Rules of Court require an application for pretrial intervention to be made no later than twenty-eight days after indictment. R. 3:28(h). Late filing alone, however, is not a reason to reject the PTI application under New Jersey law. Prosecutor and PTI director are encouraged to consider “an individual defendant’s features that bear on his or her amenability to rehabilitation.” State v. Negran, 178 N.J. 73, 80 (N.J. 2003).
For example, PTI applicant may desire to pursue a lifestyle which is free of drugs and in harmony with laws. PTI applicant may also rely on privilege to drive (which can be lost if convicted) as means to provide income for him- or herself and/or his/her family. If charges are drug-related, self-enrollment of PTI applicant into rehabilitation program is a factor for prosecutor/PTI director to consider.
Legislative purpose of the PTI, further gives prosecutor flexibility of one’s application into the program. “The primary purpose of [PTI] is to assist in the rehabilitation of worthy defendants, and, in the process, to spare them the rigors of the criminal justice system.” State v. Watkins, 193 N.J. 507, 513 (2008). PTI, an alternative to criminal prosecution, provides supervisory treatment in lieu of criminal sentencing for defendants whose criminal activity can be deterred through such supervisory treatment. Id. at 517–18. To effectuate the purpose of PTI, “[e]ligibility is broad and includes all defendants who demonstrate the will to effect necessary behavioral change….” Watkins, supra, 193 N.J. at 513. To effectively administer legislative vision of rehabilitation, as well as, to effectuate fair administration of justice, prosecutor can and does allow “out of time” PTI applications for worthy defendants.
Rule 3:28(h) twenty eight day requirement is also relaxed by N.J.S. 2C:43-12(e), allowing a referral to the program “[a]t any time prior to trial[.]” See also State v. Stafford, 2009 WL 838245 (2009) (rejecting a strict construction to the twenty eight (28) day timeline and directing the court below to “consider and decide defendant’s motion to permit the late filing of her application to the PTI program.“).
Based on the above, eligible applicant may seek the consent of the prosecutor and positive recommendations from the PTI director for admission into PTI to rehabilitate him/her and give an opportunity to be a constructive member of the society.