Tag: criminal defense

Changes to Pre-Trial Intervention Program Coming

John Roberts, Esq.
Arseneault & Fassett, LLP

New Jersey has adopted new Court Rules which affect the Pre-Trial Intervention (PTI) application and admission process for people charged with criminal offenses.

PTI is a diversionary program which allows eligible defendants charged with indictable offenses (commonly called “felonies”) to comply with supervision and rehabilitation prior to trial. Participants who successfully complete the program can have their criminal charges dismissed without a conviction. Supervision generally lasts between one and three years, and includes conditions such as reporting to a Probation officer, refraining from additional violations, seeking and maintaining employment, random drug testing, participating in substance abuse treatment, and paying restitution to any victims.

The new Rules creates several categories of PTI applications and set forth how each category will be considered, including:

  • Ineligible for PTI. PTI is not available to defendants who have previously participated in PTI or other diversionary programs, have been convicted of a first- or second- degree indictable offense, or have been sentenced to confinement for any level of indictable offense.
  • Ineligible for PTI without the Prosecutor’s consent. These include offenses that carry a presumption of incarceration or a mandatory minimum period of incarceration, as well as defendants who were previously convicted of a third-or fourth-degree offense without jail time. The prosecutor must review and consent to these applications before they can begin the standard review process with the criminal manager’s office.
  • Presumption against admission into PTI. Public officers or employees charged with an offense touching on their office and defendants charged with domestic violence offenses are presumed to be ineligible for PTI. However, the defendant’s attorney can submit to the criminal manager’s office with the application a written statement setting forth the “extraordinary and compelling circumstances” of a particular case to rebut the presumption.

A defense attorney’s advocacy is especially critical in the latter two categories. For applications which require the prosecutor’s consent, the prosecutor is not required to consider any facts favorable to the defendant which are not included in the application. Likewise, applications which are presumptively inadmissible must overcome a high bar to meet the “extraordinary and compelling” standard. An experienced criminal defense attorney can help assess a defendant’s application and advocate effectively for admission into PTI.

Furthermore, defendants whose PTI applications have been denied, either by the prosecutor or the criminal case manager’s office, can appeal the denials to the Court. However, very specific and exacting standards apply to such appeals. An experienced criminal defense attorney can best assess the likelihood of success and zealously advocate such appeals.

The new Rules were adopted by the New Jersey Supreme Court on September 15, 2017, and take effect on July 1, 2018.

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Third Circuit Opinion: United States v. Chapman

John Roberts, Esq.
Arseneault & Fassett, LLP

In United States v. Chapman, No. 16-1810 (3d Cir. Aug. 4, 2017), the U.S. Court of Appeals for the Third Circuit held that mailing threatening communications, in violation of 18 U.S.C. §876(c), qualifies as a “crime of violence” for purposes of determining career offender status under the U.S. Sentencing Guidelines. Violations of §876(c) are punishable by up to five years imprisonment generally, or up to ten years if directed against a federal judge or federal law enforcement official. Chapman had been convicted of two prior violations of §876(c), first after he mailed a letter threatening to kill President George W. Bush, and then after mailing a letter which threatened a federal judge and court staff. After violating the terms of his supervised release following his second conviction, Chapman sent another threatening letter to the federal prosecutor who was handling Chapman’s revocation. After pleading guilty, Chapman was deemed a career offender based on his three convictions under §876(c).

Chapman argued that mailing threatening communications was not a crime of violence because it did not require “violent physical force.” The Court applied a categorical approach to the question, comparing only the elements of the statute against the guideline and disregarding the particular facts of Chapman’s offenses. By this method, if the statute has the same element as the guideline, or defines the offense more narrowly, then a violation counts toward career offender status. If the statute defines offense conduct more broadly, then career status is not implicated. The Sentencing Guidelines define the predicate “crime of violence” as including any offense punishable by more than one year imprisonment that has as an element the “threatened use of physical force against another.” The statute prohibits communications “containing [] any threat to injure the person of the addresses or of another.” The Court noted the Supreme Court’s interpretation of “physical force” as “violent force” and reasoned that the common definition of “injure” implicates “physical force.” Therefore, the violations of §876(c) qualify toward career offender status. By its holding, the Court brought the Third Circuit into alignment with the First, Second, Eighth, and D.C. Circuits.

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