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There are five purposes of PTI:
(1) to enable defendants to avoid ordinary prosecution by receiving early rehabilitative services to deter future criminal behavior;
(2) to provide defendants who might be harmed by the imposition of criminal sanctions with an alternative to prosecution;
(3) to avoid burdensome prosecutions for “victimless” offenses;
(4) to relieve overburdened criminal court calendars to allow the expenditure of scarce resources on more serious criminal matter; and
(5) to deter future criminal behavior of PTI participants. State v. Nwobu, 139 N.J. 236, 247 (1995); PTI Guideline 1.
The criteria for eligibility into PTI were first set forth in State v. Leonardis, 71 N.J. 85, 121-122 (1976), and are now contained in seventeen factors itemized in N.J.S.A 2C:43-12 and in eight guidelines set forth under R. 3:28. In general, the appropriateness of a defendant’s admission to PTI is determined by the defendant’s amenability to rehabilitation as well as by the nature of the offense involved. State v. Leonardis, 71 N.J. at 98, 102. See, e.g., N.J.S.A 2C:43-12b; PTI Guideline 7. Neither the criteria set forth in the statute nor in the rule are exhaustive or dispositive. State v. Pickett, 186 N.J. Super. 599, 604 (Law Div. 1982). A defendant need not admit his or her guilt as a predicate to receiving supervisory treatment under PTI, N.J.S.A. 2C:43-12(g), nor must a defendant be compelled to abandon his or her motion to suppress evidence. State v. Doss, 254 N.J. Super. 122, 133 (App. Div.), certify. denied, 130 N.J. 17 (1992).
As noted above, N.J.S.A 2C:43-12 lists 17 criteria which would be considered by prosecutors and criminal division managers in formulating their decisions regarding an applicant’s eligibility for PTI. These factors include: (1) the nature and facts of the case, (2) the motivation and age of the defendant, (3) the needs and interests of the victim and society and (4) the desire of the victim or complainant to forego prosecution. The statute prescribes that also to be considered are, among other factors, whether or not the crime is of an assaultive or violent nature, the applicant’s history of the use of physical violence towards others, or any involvement with organized crime. Id.
In addition to these statutory criteria, PTI Guideline 3 sets forth other factors to be considered. Among these factors are whether the defendant resides at such a distance from New Jersey as to bar effective counseling or supervisory procedures and whether the defendant is charged with a “minor violation” likely to result in a suspended sentence without probation or a fine. In these instances, PTI is not appropriate. Also present in the Guidelines is a rebuttable presumption against PTI eligibility for those defendants previously convicted of a criminal offense (particularly within the past five years, or a first or second degree offense at any time), or those defendants who were previously diverted or conditionally discharged pursuant to since-repealed N.J.S.A. 24:21-27 [now contained in part in N.J.S.A. 2C:36A-1], whereas N.J.S.A. 2C:43-12(g) absolutely bars PTI eligibility to those who previously received a section 2 supervisory treatment. The statute’s prohibition of PTI eligibility to previously diverted defendants takes precedence over the guidelines. State v. Collins, 190, 205 (App. Div. 1981), aff’d, 90 N.J. 449 (1982).
A prosecutor also may place conditions upon a defendant’s entry into the PTI program. Such conditions have included restitution, State v. Jamiolkoski, 272 N.J. Super. 326, 329 (App. Div. 1994), resignation from the police force, State v. DeMarco, 107 N.J. 562, 569-571 (1987), and payment of mandatory Drug Enforcement and Demand Reduction Penalties under N.J.S.A. 2C:33-15(a). State v. Bulu, 234 N.J. Super. 331, 341 (App. Div. 1989). However, a PTI conditioned on payment of restitution asserted by the defendant to be grossly excessive is an abuse of discretion without a hearing to determine the fair amount of restitution. State v. Jamiolkoski, 272 N.J. Super. at 329; State v. Castaldo, 271 N.J. Super. 254, 260-261 (App. Div. 1994). See also PTI Guideline 3(K). Moreover, where the State grants admission to PTI on conditions, and so informs the defense, the State may not renege where the defendant fulfilled those conditions in reliance upon the State’s initial determination. State v. Davis, 244 N.J. Super. 180, 193-194 (App. Div. 1990).
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