On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-01-0015.
The opinion of the court was delivered by: Reisner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Remanded by Supreme Court October 10, 2009.
Argued Telephonically April 27, 2010
Before Judges Lisa, Reisner and Sapp-Peterson.
This case is before us on remand from the Supreme Court. The case arose from a Law Division order denying defendant Robert Green's appeal from his exclusion from the pre-trial intervention program (PTI). In our opinion, we concluded, based on the record then before us, that Green had not been permitted to apply for PTI. State v. Green, 407 N.J. Super. 95 (App. Div.), remanded, 200 N.J. 471 (2009). At the heart of our decision remanding the case was our conclusion that under Rule 3:28, every defendant has a right to apply for PTI, even if the application might have a slim chance of being approved. Id. at 98-99; R. 3:28, Guideline 2.
At the time Green attempted to apply for PTI, it was the practice of the criminal division manager's office not to accept applications from defendants charged with certain offenses unless the prosecutor's office joined in the applications. It was clear from the record that the policy had changed while defendant's case was pending in the trial court, but it appeared that he had not been given the benefit of the new policy. Id. at 99. We therefore remanded the case to the trial court with direction that he be permitted to apply for PTI. Ibid. We did not address the merits of his application or of the prosecutor's determination that he did not qualify for PTI.
The State petitioned for certification from our decision and filed a motion to supplement the record with materials intended to show that defendant had been permitted to apply for PTI under the new policy. The Court granted the motion and remanded the case to us to reconsider in light of the supplemental materials. On remand, we required the parties to submit supplemental briefs and we heard oral argument. We now conclude that a remand to the trial court remains the appropriate disposition of the appeal.
The supplemental materials include a June 11, 2009 certification from the vicinage PTI director. She attested that in June 2007, the vicinage PTI program adopted a new procedure under which defendants deemed "conditionally ineligible" for PTI were given a document intended to advise them of their right to apply to PTI, but also advising them that they needed to get the prosecutor's consent or to show compelling reasons for admission to PTI. We have reviewed this form. It is captioned "Notice of Pretrial Intervention (PTI) Ineligibility," and the first sentence unequivocally states: "Your case has been pre-screened by the Monmouth Vicinage Criminal Division and found to be ineligible pursuant to R. 3:28."
Several lines below this sentence, the form lists offenses that under Guideline 3 would create a rebuttable presumption of ineligibility. Below that list, the form advises that "[i]n the event you still wish to apply for PTI and have compelling reasons to do so, application should be made no later than 28 days after indictment." The form further advises that the prosecutor must join in the application in writing, or "[i]f the Prosecutor does not join in, this must also be in writing and compelling reasons must be submitted justifying your admission . . . . The compelling reasons must be submitted to the Criminal Division within ten (10) days of notice from the Prosecutor."
The PTI director's certification also attested that since our 2009 decision in this case, "[t]he June 2007 revised procedure has been suspended." Instead, "[p]resently, every application filed by a defendant is given a full work-up regardless of eligibility or the timeliness of the filing." According to ...