Tag: No-Jail Options in NJ

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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A.G.’s Office Allows No-Jail Options for Out-of-State Concealed-Carry Holders Visiting N.J.

By: John J. Roberts, Esq. Arseneault & Fassett, LLP

On September 24, 2014, New Jersey’s Office of the Attorney General allowed out-of-state concealed carry permit holders who bring their handguns into New Jersey to be eligible for Pre-Trial Intervention (PTI) to avoid mandatory jail time under New Jersey’s strict gun laws.

The “clarification” was provided in a Directive issued to the Division of Criminal Justice and all 21 county prosecutors in New Jersey by John J. Hoffman, the Acting Attorney General.

The new Directive results from the recent high-profile case of Shaneen Allen, a single mother of two from South Philadelphia.  After twice being the victim of robberies, Allen legally obtained a permit to carry a handgun in her home state of Pennsylvania.  In October 2013, while visiting Atlantic City, New Jersey, Allen was pulled over by police in a routine traffic stop.  Allen informed officers that she was licensed to carry a firearm, and that her handgun was secured in the trunk of her car.  Officers seized the gun and arrested Allen for violating New Jersey gun laws.

New Jersey generally does not permit residents to carry firearms outside their homes, and does not recognize carry permits issued by other states.  Out-of-state visitors therefore violate the law if they bring the firearms that they are licensed to carry in their home states into the state of New Jersey.  Under the Graves Act, even inadvertent violators such as Allen face a mandatory minimum sentence of three and a half years in state prison.

The Directive provides prosecutors with added discretion when considering PTI for otherwise law-abiding persons who inadvertently violate New Jersey’s gun laws.  In fact, it states that “in the absence of case-specific aggravating circumstances, these defendants should not be sentenced to incarceration.”  Instead, prosecutors should offer such defendants either PTI or a plea deal in which the defendant pleads guilty and is sentenced to probation without jail.

PTI allows eligible defendants to have their criminal charges dismissed after a period of supervision, without having to plead guilty and without receiving a conviction.  To be eligible, defendants must be charged with an indictable (felony) offense and must not have a prior criminal conviction or diversion.  PTI generally requires one to three years of supervision, during which time the enrollee must report regularly to a Probation officer and follow other conditions imposed by the Court.

Under New Jersey law, prosecutors determine whether a defendant is eligible for PTI considering a list of factors set forth by statute.  The Directive sets forth additional specific factors relevant to cases such as Allen’s in which the defendant obtained her firearm legally, its possession would have been legal in her home state, and she believed that such possession was legal in New Jersey. Those special factors are:

  • Whether the manner and circumstances of the possession minimized the exposure of the firearm to others, thereby reducing the risk of harm;
  • Whether the defendant is otherwise a law-abiding person;
  • Whether the defendant advised police of the firearm on her own initiative;
  • Whether the defendant presented the unloaded firearm to a hotel clerk for safekeeping overnight;
  • Whether the defendant had been advised beforehand of the limitations of her right to carry a firearm into New Jersey.

In New Jersey, ignorance of the law is still not a defense.  However, prosecutors now have much greater justification for using common sense to ensure that law-abiding visitors who inadvertently violate New Jersey’s no-carry laws do not end up serving time in prison for their mistakes.  Persons charged with such offenses — or any criminal violation — are strongly advised to retain a reputable attorney to represent their interests.

 

 

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