In State v. Lee, decided by the New Jersey Appellate Division on October 27, 2014, the defendant applied for admission to the pretrial intervention (“PTI”) program after he was charged with aggravated assault on a police officer and resisting arrest. His application was accepted by the Essex County PTI program director, but rejected by the Essex County Prosecutor’s Office. The trial court returned the matter to the prosecutor for reconsideration, but Mr. Lee’s application was again rejected. In doing so, the State provided additional reasons why they had denied Mr. Lee’s application. The judge ultimately found in favor of the State and upheld the denial of PTI. No testimonial hearing was conducted.

The defendant appealed on the ground that the PTI Guidelines, which include a presumption against PTI where the defendant’s offense was “deliberately committed with violence or threat of violence against another person,” was inconsistent with and preempted by the PTI law itself. The Appellate Panel disagreed, finding that the presumption can be rebutted, and that the Guideline and statute can therefore coexist. Further, the defendant, who contested the complainant’s version of the facts (and provided statements of eyewitnesses supporting his version of events), argued that the trial judge was required to hold an evidentiary hearing to determine those facts in connection with the PTI application. This argument was also rejected by the Appellate Division, holding that it would interfere with the prosecutor’s discretion with regard to PTI, and would delay the efficient resolution of PTI proceedings. Further, requiring hearings would, in the opinion of the Appellate Division, burden the state’s witnesses with an additional court appearances if the application was denied. The Appellate judges found no constitutional or statutory right to an evidentiary hearing.

The Appellate panel further found that Mr. Lee’s request not to utilize the highly deferential PTI standard of review where the State’s PTI decision conflicts with that of the PTI program director, was not an issue for the courts to address, but was, instead, a policy issue for the Supreme Court and the Legislature to evaluate.

For individuals who are facing prosecution in the New Jersey Criminal Courts, it is critical to have an experienced New Jersey criminal defense attorney represent you. The experienced criminal defense lawyers of Schwartz & Posnock appear in the Superior and Municipal Courts throughout New Jersey, and have convenient locations in Monmouth County (Eatontown), Essex County (Livingston), Union County (Linden), and Middlesex County (East Brunswick). Call us at 732-544-1460 or email us at to schedule an appointment.