New Jersey’s pretrial intervention, designed to divert less serious criminal cases from prosecution, is not available after charges have been tried and guilty verdicts are returned, the state Supreme Court ruled on Tuesday.
PTI is not now and never has been a sentencing alternative, and admitting an otherwise deserving defendant after a verdict frustrates the goals of early diversion, early rehabilitation and avoidance of the stigma of a criminal conviction, the justices said in State v. Bell.
They agreed with an appeals court that found a trial judge erred in allowing Sean Bell to enter the program after a charge of second-degree aggravated assault, which would have precluded his admission, was dismissed but also after a jury found him guilty of third-degree aggravated assault.
At Bell’s high school graduation party in June 2006, he and Thomas Schwab punched and kicked another guest, Michael Higgins, knocking him unconscious. Schwab and Bell were charged with the same offenses but Schwab was granted admission to PTI in consideration for testifying against Bell.
Bell did not apply for PTI until after his trial, despite the requirement of R. 3:28(h) that applications be made within 28 days of an indictment.
Overruling the prosecutor’s rejection, Ocean County Superior Court Judge Wendel Daniels found Bell entitled to PTI. He said Bell and Schwab were similarly situated and the prosecutor’s decision to deny Bell PTI was a clear error of judgment.
Daniels relied on State v. Halm, 319 N.J. Super 569 (App. Div. 1999), where the defendant was charged with first-, second- and third-degree offenses in connection with a sexual assault. His timely application for PTI was rejected by the court staff and the prosecutor. After he was convicted only of third-degree cocaine possession, he moved for reconsideration. The motion judge said no but the Appellate Division reversed.
In Bell’s case, the Appellate Division distinguished Halm because Bell did not make a timely PTI application.
The Supreme Court agreed in a 6-0 ruling, saying, “Whether pre-indictment or postindictment, an accused must apply for admission to PTI prior to trial.”
Judge Mary Catherine Cuff, writing for the court, said it was “of no moment” that a jury found the defendant not guilty of first- or second-degree crimes that might have barred his path to PTI.
She said the goals of PTI, first established by statute in 1979, “have been completely frustrated” by Bell’s admission to PTI, nearly four years from the date of the altercation that gave rise to the charges.
PTI admission in this case “not only thwarts the purpose of this particular diversionary program because the defendant has been found guilty of a criminal offense but also nullifies a valid verdict of guilt.
“We know of no authority that permits a court to nullify a valid verdict through the device of a belated application to a diversionary program,” she said.
Assistant Public Defender Dale Jones, whose office represented Bell, called it “troubling” that he will receive a harsher sentence than his co-defendant, absent any distinctions between the criminal acts of the two.
“People who commit the same offense ought to be treated the same way,” Jones said. “A decision like this kind of makes it, who’s got the best lawyer and who wins the race to the prosecutor’s office.”
Supervising Assistant Ocean County Prosecutor Samuel Marzarella said the court’s decision, and its decision not to apply the Halm case, reaffirm the time restrictions on applying for PTI in the face of defense counsel’s arguments.
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