Todd Christopher Fenton, Anthony Wilbert Gilmore and Frank Christaldi have been admitted to the Pretrial Intervention Program ("PTI"). The following conditions, among others, were accepted by them at the time of their admission:
I will call my counselor if I must break an appointment; I will speak to him/her in person; not leave a message. I will not miss a meeting without proving to my counselor that there was valid reason for my absence or I will be rejected/terminated.
From this date onward my re-arrest on any charge or any involvement with illegal behavior is grounds for being dropped by Pretrial. I also understand that if these occur and I do not tell my counselor I will be rejected/terminated. I understand that cooperation is not simply a matter of being present at meetings with my counselor but a matter of willingness and openess in dealing with my problem areas. I will cooperate.
All three defendants have now been charged with criminal offenses. Fenton has been indicted; Gilmore and Christaldi have been arrested. None has been convicted. Fenton reported his criminal charge to his PTI counselor. Gilmore and Christaldi did not. Christaldi has also failed to keep two appointments with his counselor. The PTI Director moves for the termination of their PTI programs by reason of their violation of the PTI conditions to which they are subject. The Prosecutor supports the applications, offers proof of the indictment and the arrests, and argues that, standing alone, they are sufficient to carry the burden of proof. The matters are consolidated for the purpose of addressing their common arrest-indictment issues in this opinion.
N.J.S.A. 2C:43-13e provides:
Upon violation of the conditions of supervisory treatment, the court shall determine, after summary hearing, whether said violation warrants the participant's dismissal from the supervisory treatment program or modification of the conditions of continued participation in that or another supervisory treatment program. Upon dismissal of participant from the supervisory treatment program, the charges against the participant may be reactivated and the prosecutor may proceed as though no supervisory treatment had been commenced.
Guideline 8 to R. 3:28 states:
The decisions and reasons therefor made by the designated judges (or Assignment Judges) . . . in ordering termination from the program . . ., in all cases must be reduced to writing and disclosed to defendant.
Our statutes and rules provide no further illumination in these areas.
The courts of New Jersey have addressed PTI termination rules and procedures on three occasions:
Defendant, admitted to a PTI program after being indicted for fraud, was again indicted, for forgery. The State moved to
terminate his program. The court, in a first-time opinion, addressed the question of defendant's right to due process in a termination proceeding. It held that the defendant was entitled to:
(a) written notice of the claimed violations of the conditions of PTI;
(b) disclosure . . . of the evidence relied on;
(c) the opportunity to be heard in person and to present witnesses and documentary evidence;
(d) the right to confront and examine adverse witnesses;
(e) a statement of reasons for termination by the presiding judge. [158 ...