| Kenneth Vercammen's Law office represents individuals charged with criminal
and serious traffic violations throughout New Jersey.
Under New Jersey Criminal Statute and Court Rules, someone charged with
an indictable criminal offense who has no prior indictable offenses can
apply for Pre-Trial Intervention (PTI).
This Statute permits someone under limited instances to have the prosecution
stopped and enter into a probation type program. If someone successfully
completes PTI, the indictable criminal charge is dismissed.
PTI is not available if the criminal offense is a disorderly person offense,
such as simple assault, harassment or shoplifting. For persons facing
a first offense possession of marijuana charge, they can apply for a Conditional
Discharge. NJSA 2C: 36-1. As a practical matter, in Municipal Courts,
the defense attorneys sometimes can work out an agreement with the complainant
in a municipal court criminal ticket to have the prosecution put on hold
for six months. If the defendant complies with a stipulated agreement,
such as staying away from the complainant, after 6 months the criminal
charges are dismissed.
It is imperative for someone facing criminal charges, whether indictable
or not, to immediately hire an experienced criminal attorney.
Do not rely on a real estate attorney to be familiar with recent cases
affecting PTI and criminal law.
PTI should be applied for immediately with Criminal Case Management.
The Court Rules have time limits for PTI application and appeals from
denial of PTI. Procedurally, once the accused applies for PTI, a decision
to accept or reject is made by the Criminal Case Manager.
If approved, then the County Prosecutor's office must approve. Thereafter,
the Superior Court Judge assigned to the case must approve the defendant.
If the defendant is rejected by either the Criminal Case Manager or the
Prosecutor, a timely appeal must be filed with the Superior Court Judge.
In Practice, my law office has submitted letters of reference, proof
of employment, a resume and other supporting documents to the Criminal
Case Manager. Similar to sentencing, you want to provide any beneficial
facts and papers to demonstrate the defendant is a first time offender
who is unlikely to again be involved in a criminal case.
Similar to Probation following a guilty plea or conviction, the Court
can require the defendant to perform certain acts. Typical re-trial orders
direct the defendant to not get arrested, undergo drug and alcohol testing
and counseling, pay restitution or perform other acts.
Non-compliance will result in dismissal from PTI. Thereafter, the defendant
must face trial on all indictable charges.
CONDITIONAL DISCHARGE OF DRUG CHARGES IN MUNICIPAL COURT
The defense of a person charged with possession of drugs or drug paraphernalia
is a difficult but not impossible task for a defense. There are a number
of viable defenses, arguments and alternatives which can be pursued to
achieve a successful result. Advocacy, commitment, and persistence are
essential to an attorney defending a client accused of involvement with
controlled dangerous substances (CDS).
If the Suppression Motion is unsuccessful or not a viable option, counsel
should discuss the possibility of obtaining a Conditional Discharge.
Some people are charged with possession of small amounts of marijuana.
N.J.S.A. 2C:36A-1 provides that a person not previously convicted of a
drug offense either under Title 2C or Title 24 and who has not previously
been granted "supervisory treatment" under N.J.S.A. 24:21-27,
2C:43-12 or 2C:36A-1 may apply for a conditional discharge.
The court upon notice to the prosecutor and subject to 2C:36A-1(c) may,
on the motion of the defendant or the court, suspend further proceedings
and place the defendant on supervisory treatment (i.e., probation,, supervised
or unsupervised attendance at Narcotics Anonymous, etc.). Since the granting
of a conditional discharge is optional with the court, defense counsel
should be prepared to prove, through letters, documents, or even witnesses,
that the defendant's continued presence in the community or in a civil
treatment program, will not pose a danger to the community.
Defense counsel should be prepared to convince the court that the terms
and conditions of supervisory treatment will be adequate to protect the
public and will benefit the defendant by serving to correct any dependence
on or use of controlled substances. For applicable caselaw on conditional
discharges, see State v. Sanders, N.J. Super. 515 (App. Div. 1979), State
v. Banks, 157 N.J. Super. 442 (Law Div. 1978), State v. Grochulski, 133
N.J. Super. 586 (Law Div. 1975), State v. Teitelbaum, 160 N.J. Super.
450 (Law Div. 1978), State v. DiLuzio, 130 N.J. Super. 220 (Law Div. 1974).
The defendant must be required to pay a $45.00 application fee, plus the
mandatory $500.00 DEDR penalty. The court further has the option to suspend
a defendant's driver's license for between six months and two years.
The conditional discharge period is also between six months and two years.
If the defendant is convicted of a drug offense during the CD period or
violates the conditions set by the court, the prosecution resumes. The
defendant may even apply for a conditional discharge after he/she is found
guilty, but before sentence is imposed. If the CD is granted at this point
in the proceeding, the 6 to 24 month license suspension is mandatory.
Drug related offenses carry substantial penalties which will effect a
client for the rest of his life. The space limits of this article do not
allow detailed explanation of the extensive caselaw on controlled dangerous
substances. Members of the Bar must accept the challenge and apply their
legal talents to ensure that the rights of their clients are protected.
CONCLUSION
Pre-trial intervention is an excellent opportunity for someone to avoid
a trial and conviction. If facing criminal charges, quickly sit down with
a criminal attorney to protect your rights. If accepted into Pre-Trial
Intervention, Motions to Suppress Evidence and other Motions are put on
hold.
PTI law:
2C:43-12. Supervisory treatment - pretrial intervention 2C:43-12. Supervisory
Treatment--Pretrial Intervention. a. Public policy. The purpose of sections
2C:43-12 through 2C:43-22 of this chapter is to effectuate a Statewide
program of Pretrial Intervention. It is the policy of the State of New
Jersey that supervisory treatment should ordinarily be limited to persons
who have not previously been convicted of any criminal offense under the
laws of New Jersey, or under any criminal law of the United States, or
any other state when supervisory treatment would:
(1) Provide applicants, on an equal basis, with opportunities to avoid
ordinary prosecution by receiving early rehabilitative services or supervision,
when such services or supervision can reasonably be expected to deter
future criminal behavior by an applicant, and when there is apparent causal
connection between the offense charged and the rehabilitative or supervisory
need, without which cause both the alleged offense and the need to prosecute
might not have occurred; or
(2) Provide an alternative to prosecution for applicants who might be
harmed by the imposition of criminal sanctions as presently administered,
when such an alternative can be expected to serve as sufficient sanction
to deter criminal conduct; or
(3) Provide a mechanism for permitting the least burdensome form of prosecution
possible for defendants charged with "victimless" offenses;
or
(4) Provide assistance to criminal calendars in order to focus expenditure
of criminal justice resources on matters involving serious criminality
and severe correctional problems; or
(5) Provide deterrence of future criminal or disorderly behavior by an
applicant in a program of supervisory treatment.
b. Admission of an applicant into a program of supervisory treatment
shall be measured according to the applicant's amenability to correction,
responsiveness to rehabilitation and the nature of the offense.
c. The decision and reasons therefor made by the designated judges (or
assignment judges), prosecutors and program directors in granting or denying
applications for supervisory treatment, in recommending and ordering termination
from the program or dismissal of charges, in all cases shall be reduced
to writing and disclosed to the applicant.
d. If an applicant desires to challenge the decision of the prosecutor
or program director not to recommend enrollment in a program of supervisory
treatment the proceedings prescribed under section 14 shall be followed.
e. Referral. At any time prior to trial but after the filing of a criminal
complaint, or the filing of an accusation or the return of an indictment,
with the consent of the prosecutor and upon written recommendation of
the program director, the assignment judge or a judge designated by him
may postpone all further proceedings against an applicant and refer said
applicant to a program of supervisory treatment approved by the Supreme
Court. Prosecutors and program directors shall consider in formulating
their recommendation of an applicant's participation in a supervisory
treatment program, among others, the following criteria:
(1) The nature of the offense;
(2) The facts of the case;
(3) The motivation and age of the defendant;
(4) The desire of the complainant or victim to forego prosecution;
(5) The existence of personal problems and character traits which may
be related to the applicant's crime and for which services are unavailable
within the criminal justice system, or which may be provided more effectively
through supervisory treatment and the probability that the causes of criminal
behavior can be controlled by proper treatment;
(6) The likelihood that the applicant's crime is related to a condition
or situation that would be conducive to change through his participation
in supervisory treatment;
(7) The needs and interests of the victim and society;
(8) The extent to which the applicant's crime constitutes part of a continuing
pattern of anti-social behavior;
(9) The applicant's record of criminal and penal violations and the extent
to which he may present a substantial danger to others;
(10) Whether or not the crime is of an assaultive or violent nature,
whether in the criminal act itself or in the possible injurious consequences
of such behavior;
(11) Consideration of whether or not prosecution would exacerbate the
social problem that led to the applicant's criminal act;
(12) The history of the use of physical violence toward others;
(13) Any involvement of the applicant with organized crime;
(14) Whether or not the crime is of such a nature that the value of supervisory
treatment would be outweighed by the public need for prosecution;
(15) Whether or not the applicant's involvement with other people in
the crime charged or in other crime is such that the interest of the State
would be best served by processing his case through traditional criminal
justice system procedures;
(16) Whether or not the applicant's participation in pretrial intervention
will adversely affect the prosecution of codefendants; and
(17) Whether or not the harm done to society by abandoning criminal prosecution
would outweigh the benefits to society from channeling an offender into
a supervisory treatment program.
f. Review of Supervisory Treatment Applications; Procedure Upon Denial.
Each applicant for supervisory treatment shall be entitled to full and
fair consideration of his application. If an application is denied, the
program director or the prosecutor shall precisely state his findings
and conclusion which shall include the facts upon which the application
is based and the reasons offered for the denial. If the applicant desires
to challenge the decision of a program director not to recommend, or of
a prosecutor not to consent to, enrollment into a supervisory treatment
program, a motion shall be filed before the designated judge (or assignment
judge) authorized pursuant to the rules of court to enter orders.
g. Limitations. Supervisory treatment may occur only once with respect
to any defendant and any person who has previously received supervisory
treatment under section 27 of P.L.1970, c.226 (C.24:21-27), shall not
be eligible for supervisory treatment under this section. However, supervisory
treatment, as provided herein, shall be available to a defendant irrespective
of whether the defendant contests his guilt of the charge or charges against
him.
h. Termination. Termination of supervisory treatment under this section
shall be immediately reported to the assignment judge of the county who
shall forward such information to the Administrative Director of the Courts.
i. Appointment of Program Directors; Authorized Referrals. Programs of
supervisory treatment and appointment of the program directors require
approval by the Supreme Court with the consent of the assignment judge
and prosecutor. Referrals of participants from supervisory treatment programs
may be to any public or private office or agency, including but not limited
to, programs within the probation service of the court, offering counseling
or any other social service likely to aid in the rehabilitation of the
participant and to deter the commission of other offenses.
j. Health Care Professional Licensing Board Notification. The program
director shall promptly notify the State Board of Medical Examiners when
a State licensed physician or podiatrist has been enrolled in a supervisory
treatment program after he has been charged with an offense involving
drugs or alcohol.
Amended 1979, c.178, s.88; 1987,c.106,s.14; 1989,c.300,s.22.
2C:43-13. Supervisory treatment procedure 2C:43-13. Supervisory Treatment
Procedure a. Agreement. The terms and duration of the supervisory treatment
shall be set forth in writing, signed by the prosecutor and agreed to
and signed by the participant. Payment of the assessment required by section
2 of P.L.1979, c.396 (C.2C:43-3.1) shall be included as a term of the
agreement. If the participant is represented by counsel, defense counsel
shall also sign the agreement. Each order of supervisory treatment shall
be filed with the county clerk.
b. Charges. During a period of supervisory treatment the charge or charges
on which the participant is undergoing supervisory treatment shall be
held in an inactive status pending termination of the supervisory treatment
pursuant to subsection d. or e. of this section.
c. Period of treatment. Supervisory treatment may be for such period,
as determined by the designated judge or the assignment judge, not to
exceed three years, provided, however, that the period of supervisory
treatment may be shortened or terminated as the program director may determine
with the consent of the prosecutor and the approval of the court.
d. Dismissal. Upon completion of supervisory treatment, and with the
consent of the prosecutor, the complaint, indictment or accusation against
the participant may be dismissed with prejudice.
e. Violation of conditions. Upon violation of the conditions of supervisory
treatment, the court shall determine, after summary hearing, whether said
violation warrants the participant's dismissal from the supervisory treatment
program or modification of the conditions of continued participation in
that or another supervisory treatment program. Upon dismissal of the participant
from the supervisory treatment program, the charges against the participant
may be reactivated and the prosecutor may proceed as though no supervisory
treatment had been commenced.
f. Evidence. No statement or other disclosure by a participant undergoing
supervisory treatment made or disclosed to the person designated to provide
such supervisory treatment shall be disclosed, at any time, to the prosecutor
in connection with the charge or charges against the participant, nor
shall any such statement or disclosure be admitted as evidence in any
civil or criminal proceeding against the participant. Nothing provided
herein, however, shall prevent the person providing supervisory treatment
from informing the prosecutor, or the court, upon request or otherwise
as to whether or not the participant is satisfactorily responding to supervisory
treatment.
g. Delay. No participant agreeing to undergo supervisory treatment shall
be permitted to complain of a lack of speedy trial for any delay caused
by the commencement of supervisory treatment.
A person applying for admission to a program of supervisory treatment
shall pay to the court a fee of $75.00. The court shall forward all money
collected under this subsection to the treasurer of the county in which
the court is located. This money shall be used to defray the cost of juror
compensation within that county. A person may apply for a waiver of this
fee, by reason of poverty, pursuant to the Rules Governing the Courts
of the State of New Jersey. Of the moneys collected under this subsection,
$30.00 of each application fee shall be deposited in the temporary reserve
fund created by section 25 of P.L.1993, c.275. After December 31, 1994,the
$75.00 fee shall be paid to the court, for use by the State.
Amended 1979,c.178,s.89; 1988,c.44,s.15; 1991,c.329,s.5; 1993,c.275,s.15.
2C:43-14. Authority of supreme court The Supreme Court may adopt rules
dealing with Supervisory Treatment in accordance with procedures herein
set forth.
L.1978, c. 95, s. 2C:43-14, eff. Sept. 1, 1979. 2C:43-15. Presentation
of proposed rules at judicial conference 2C:43-15. The subject matter
and a tentative draft of a rule or rules proposed to be adopted pursuant
to this chapter shall be entered upon the agenda and discussed at a Judicial
Conference whose membership shall at least include delegates from the
Supreme Court, the Appellate Division of the Superior Court, the judges
of the Superior Court, the judges of the municipal courts, the surrogates,
the State Bar Association, the county bar associations, the Senate and
General Assembly, the Attorney General, the county prosecutors, the law
schools of this State, and members of the public.
Amended 1979,c.178,s.90; 1991,c.91,s.145.
2C:43-16. Public announcement of proposed rules; delivery of copies The
proposed rule or rules shall be publicly announced by the Supreme Court
on September 15 next following such Judicial Conference (or, if such day
be a Saturday, Sunday or legal holiday, on the first day thereafter that
is not), and the court shall, on the same day, cause true copies thereof
to be delivered to the President of the Senate, the Speaker of the General
Assembly, and the Governor.
L.1978, c. 95, s. 2C:43-16, eff. Sept. 1, 1979.
2C:43-17. Effective date of rules; rules subject to cancellation by joint
resolution The rule or rules so announced and delivered shall take effect
on July 1 next following; provided, however, that all such rules shall
remain subject to cancellation at any time up to such effective date by
joint resolution to that effect adopted by the Senate and General Assembly
and signed by the Governor.
L.1978, c. 95, s. 2C:43-17, eff. Sept. 1, 1979. 2C:43-18. Change or cancellation
of rules by statute or adoption of subsequent rules Any rule or rules
so proposed or adopted shall be subject to change or cancellation at any
time by statute or by a subsequent rule adopted pursuant to this chapter.
L.1978, c. 95, s. 2C:43-18, eff. Sept. 1, 1979. Amended by L.1979, c.
178, s. 91, eff. Sept. 1, 1979.
2C:43-19. Adoption of rules at such time, or with such effective date,
or without presentation at judicial conference, as may be provided in
joint resolution By joint resolution adopted by the Senate and General
Assembly and signed by the Governor with respect to a particular rule
or rules therein specified the Supreme Court may adopt such rule or rules
at such time or times, or with such effective date, or without presentation
at a Judicial Conference, as may be provided in the joint resolution.
L.1978, c. 95, s. 2C:43-19, eff. Sept. 1, 1979.
2C:43-20. Reduction or elimination of time during which rules may be
canceled by joint resolution By joint resolution adopted by the Senate
and General Assembly and signed by the Governor with respect to a particular
rule or rules therein specified, the period of time as provided in 2C:43-17
during which the same may be canceled by joint resolution may be reduced
or eliminated.
L.1978, c. 95, s. 2C:43-20, eff. Sept. 1, 1979. 2C:43-21. Index and reports
a. Index. The Administrative Director of the Courts shall establish and
maintain an index of cases in which applications for supervisory treatment
have been made and such index shall indicate the dispositions of those
applications.
b. Reports. At the termination of the year in which this chapter takes
effect and at the termination of each calendar year thereafter, for a
period of 5 years, the assignment judge for each county shall report the
results of the rehabilitative effort prescribed in this act to the Administrative
Director of the Courts. The report shall include a description of offenses
for which supervisory treatment was prescribed, the type of treatment
to which defendants were assigned, the number and types of criminal acts,
if any, committed by persons during their period of supervisory treatment,
the number of persons successfully completing supervisory treatment and
against whom charges were dismissed, and, where possible, the number and
types of criminal acts, if any, committed by such persons subsequent to
successful completion of supervisory treatment.
c. Evaluation. The Administrative Director of the Courts shall, from
time to time as he deems necessary, or upon request from the Legislature,
evaluate the program of supervisory treatment on the basis of reports
made to him by county and municipal prosecutors. He shall submit his evaluation,
together with special findings and recommendations to the Legislature.
d. No order of expungement or sealing shall affect any entry in the index
or any registry of such information established by the Administrative
Office of the Courts.
L.1978, c. 95, s. 2C:43-21, eff. Sept. 1, 1979. Amended by L.1979, c.
178, s. 92, eff. Sept. 1, 1979.
2C:43-22. Disclaimer Nothing contained in this act is intended to supersede,
repeal or modify the authority granted and procedure prescribed under
section 27 of P.L.1970, c. 226 (C. 24:21-27).
L.1978, c. 95, s. 2C:43-22, eff. Sept. 1, 1979.
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