State v. Sean Bell (070736) , 217 N.J. 336 ( 2014 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).
State v. Sean Bell (A-21-12) (070736)
Argued September 23, 2013 -- Decided May 13, 2014
CUFF, P.J.A.D. (temporarily assigned), writing for a unanimous Court.
The issue in this appeal is whether a defendant may be admitted to the Pretrial Intervention (PTI) program
after he is found guilty by a jury but before he is sentenced.
In January 2007, a grand jury indicted defendant Sean Bell and co-defendant Thomas Schwab with second-
degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), and third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7),
arising out of a June 2006 fight. Defendant did not apply for admission to PTI based on his attorney’s advice that
the second-degree charge made him ineligible. A 2009 superseding indictment charged defendant and co-defendant
with the same crimes, after which co-defendant applied for and received admission to PTI. Defendant proceeded to
trial. At the close of the State’s case, the trial court dismissed the second-degree aggravated assault charge. On
March 18, 2010, a jury convicted defendant of third-degree attempted aggravated assault.
Prior to sentencing, defendant applied for admission to PTI, which the State denied. Defendant appealed to
the Law Division, claiming that he was entitled to PTI because the second-degree offense, which his attorney
advised barred him from PTI, had been dismissed. He also claimed that he was similarly situated to co-defendant,
who was admitted to PTI. In support, defendant cited State v. Halm, 319 N.J. Super. 569 (App. Div.), certif. denied,
162 N.J. 131 (1999), which permitted an application to PTI after the defendant had been found guilty by a jury.
The trial court requested that the State reconsider defendant’s application, asking for clarification why it accepted
co-defendant into PTI but not defendant. The State again concluded that defendant was not an appropriate candidate
for PTI, explaining that it reviews each application individually and adding that, in its view, defendant showed no
remorse and the victim did not consent to defendant’s admission to the program. In January 2011, the trial court
admitted defendant into the PTI program over the prosecutor’s objection. The court found that Rule 3:28, the court
rule governing PTI, and Halm permitted PTI after defendant had been found guilty by a jury. The trial court
concluded that defendant and co-defendant were similarly situated and the prosecutor’s decision to deny defendant
PTI entry was a clear error of judgment.
The Appellate Division reversed and remanded. The panel determined that defendant’s PTI application
was not timely because N.J.S.A. 2C:43-12(e), the statute governing PTI, requires applications to be made “prior to
trial.” The panel also stated that Rule 3:28(h) contemplates that enrollment into PTI shall be resolved before or at
the pretrial conference and, in any event, before a plea or verdict. The panel distinguished Halm because the
defendant in that case filed a pretrial PTI application, whereas defendant here never made a timely PTI application
and the second-degree crime was charged in the same indictment which included the third-degree count. The panel
found that the record amply supported the finding that the defendants were not similarly situated and concluded that
the prosecutor did not grossly or patently abuse her discretion. This Court granted certification. 212 N.J. 455 (2012).
HELD: PTI is a pretrial diversionary program that is not available to a defendant once the charges have been tried
before a judge or a jury and a guilty verdict has been returned.
1. New Jersey counties began implementing PTI programs after a 1967 President’s Commission Report
recommending the diversion of some offenders in need of treatment from the criminal process to other community
resources. In State v. Leonardis, 71 N.J. 85 (1976), the Court recognized that although PTI programs differed from
county to county, they all served the same general purposes of early identification and referral of offenders who are
in need of treatment or may benefit from rehabilitative efforts, and quick and inexpensive disposition of cases. Id. at
92, 96, 121. The Court emphasized that while the goal of expeditious disposition is important and central to the PTI
concept, it is subordinate to the primary goal to rehabilitate the person accused of a criminal offense, which is best
1
accomplished prior to trial. Id. at 98-99. The Court directed statewide implementation of PTI programs to be
administered in accordance with uniform guidelines. Id. at 121. Rule 3:28 established the guidelines for the
programs adopted by the counties. Three years after Leonardis, the Legislature adopted a statute governing PTI,
which, among other things, expressly contemplated that PTI applications would be made before trial. N.J.S.A.
2C:43-12(e). (pp. 12-15)
2. The Court has reviewed various aspects of the implementation of PTI programs throughout the State and has
consistently recognized that PTI is a diversionary program specifically designed to avoid a trial and the stigma
accompanying a guilty verdict. Rule 3:28(h) provides that an “[a]pplication for pretrial intervention shall be made at
the earliest possible opportunity, including before indictment, but in any event no later than twenty-eight days after
indictment.” That rule also requires that review of the application proceed without delay. Guideline 1 to Rule 3:28
reiterates the purpose of avoiding the stigma and consequences of a criminal conviction afforded by enrollment in
PTI. Thus, the vision of PTI is to fashion, in appropriate circumstances, an alternative to the full criminal justice
mechanism of a trial. It contemplates a pretrial decision by the defendant to seek, and a pretrial decision by the
prosecutor to admit, an offender to this diversionary program. None of the laudatory purposes of pretrial
intervention are fostered by proceeding to trial and having a jury render a guilty verdict. Such a procedure not only
thwarts the purpose of PTI because the defendant has been found guilty of a criminal offense, but also nullifies a
valid verdict of guilt. Permitting a court to nullify a guilty verdict through PTI would transform an effective pretrial
diversionary program into an alternative sentencing option. That is not the intent of the PTI program. (pp. 15-17)
3. In this case, the goals of early diversion, early rehabilitation efforts, and avoidance of the stigma of a criminal
conviction have been completely frustrated because defendant was admitted to PTI after being convicted by a jury
almost four years after the criminal incident. It is, therefore, manifest that defendant’s post-verdict application for
and admission to PTI cannot stand. While Rule 3:28 and the Guidelines have evolved over the years to reflect
legislative action and case law, one principle has remained constant: PTI is a pretrial diversionary program.
Admission to PTI following a jury trial and the return of a guilty verdict is the antithesis of the very purpose of the
program. The Court’s holding is not premised on the fact that defendant did not apply for admission to PTI within
twenty-eight days of the indictment or before the pretrial conference. Instead, the Court’s holding is premised on
the very nature of PTI as a pretrial diversionary program. It is not now and never has been a sentencing alternative
following a guilty verdict. To the extent Halm suggests otherwise, the Court does not follow it. (pp. 17-19)
The judgment of the Appellate Division is AFFIRMED and the matter is REMANDED to the trial court
for imposition of an appropriate sentence.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, and PATTERSON join in
JUDGE CUFF’s opinion. JUDGE RODRÍGUEZ (temporarily assigned) did not participate.
2
SUPREME COURT OF NEW JERSEY
A-21 September Term 2012
070736
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SEAN BELL,
Defendant-Appellant.
Argued September 23, 2013 – Decided May 13, 2014
On certification to the Superior Court,
Appellate Division.
Joshua D. Sanders, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender,
attorney).
Samuel J. Marzarella, Supervising Assistant
Prosecutor, argued the cause for respondent
(Joseph D. Coronato, Ocean County
Prosecutor, attorney; Mr. Marzarella and
Nicholas D. Norcia, Assistant Prosecutor, on
the brief).
Jane C. Schuster, Deputy Attorney General,
argued the cause for amicus curiae Attorney
General of New Jersey (John J. Hoffman,
Acting Attorney General, attorney; Jeanne
Screen, Deputy Attorney General, of counsel
and on the brief).
JUDGE CUFF (temporarily assigned) delivered the opinion of
the Court.
This appeal addresses whether a defendant may be admitted
to the Pretrial Intervention (PTI) program following a jury
1
trial in which he has been found guilty but before sentencing.
Here, a grand jury had returned an indictment against defendant
Sean Bell and another man charging them with second-degree
aggravated assault, N.J.S.A. 2C:12-1(b)(1), and third-degree
aggravated assault, N.J.S.A. 2C:12-1(b)(7). The charges arose
from a fight that erupted at a high school graduation party.
Defendant did not apply for admission to PTI. He proceeded to
trial, and applied only after the trial court dismissed the
second-degree charge at the close of the State’s case and a jury
found him guilty of a third-degree charge. The trial court
admitted defendant to PTI over the objection of the prosecutor.
On appeal, the Appellate Division reversed and remanded the
matter to the trial court for sentencing.
We affirm. We hold that PTI is a pretrial diversionary
program that is not available to a defendant once the charges
have been tried before a judge or a jury and a guilty verdict
has been returned. It is of no moment that the jury has found
the defendant not guilty of first- or second-degree offenses
that may have precluded or rendered admission to PTI highly
unlikely prior to trial. Whether pre-indictment or post-
indictment, an accused must apply for admission to PTI prior to
trial. In this appeal, the verdict of guilty of third-degree
attempted aggravated assault stands and the matter is remanded
2
to the trial court for the imposition of an appropriate
sentence.
I.
The Shan and Bell families were neighbors. On June 25,
2006, the two families held a joint graduation party for their
high school graduates, Nicolette Shan and defendant. At
approximately 11:40 p.m. that evening, a fight broke out in
front of the Shan house. Scott Shan,1 Nicolette’s father, and
Michael Higgins, a guest at the party and a corrections officer,
attempted to stop the fight. Defendant thought that Shan and
Higgins had directed some of his friends to leave the party and,
as a result, confronted Higgins. A heated exchange ensued.
Shan physically restrained defendant to defuse the situation.
However, when Shan released him, defendant continued yelling at
Higgins, who responded by trying to calm defendant by talking to
him. While walking with defendant in an attempt to calm him,
Higgins tripped on some decorative rocks and fell into a koi
pond. As he attempted to climb out of the pond, Higgins tripped
on the rocks and fell again. While Higgins was on the ground,
defendant, Thomas Schwab, and Matthew Schwab, hit, punched, and
kicked him. John Lauria, another adult at the party, pulled
defendant away from the attack. Lauria moved Higgins, then
1
Scott Shan is referred to as Shan throughout the opinion.
3
unconscious, into the Shan residence. Higgins sustained
injuries to his head, face, and mouth.
An Ocean County Grand Jury indicted defendant and co-
defendant Thomas Schwab with third-degree aggravated assault,
N.J.S.A. 2C:12-1(b)(7), and second-degree aggravated assault,
N.J.S.A. 2C:12-1(b)(1). Defendant did not apply to PTI based on
the advice of his attorney.2
In 2009, a superseding indictment charged defendant and
Thomas Schwab with second-degree aggravated assault, N.J.S.A.
2C:12-1(b)(1), and third-degree aggravated assault, N.J.S.A.
2C:12-1(b)(7). Schwab applied for and received admission to PTI
with the consent of Higgins and in exchange for his truthful
testimony at defendant’s trial.
Defendant proceeded to trial on March 9, 2010. At the
close of the State’s case, the trial court dismissed the second-
degree aggravated assault charge. On March 18, 2010, a jury
convicted defendant of third-degree attempted aggravated
assault.
Prior to sentencing, defendant applied for admission to
PTI. Defendant argued that the admission of his co-defendant to
PTI, the dismissal of the second-degree offense at the close of
2
Defense counsel asserts that personnel from the prosecutor’s
office informed him that the second-degree charge barred
admission to PTI.
4
the State’s case, and the conviction of attempted aggravated
assault counseled admission to the diversionary program.
On April 22, 2010, the PTI director rejected defendant’s
application, citing the following factors to support the
rejection: the nature of the offense, N.J.S.A. 2C:43-12(e)(1);
the facts of the case, N.J.S.A. 2C:43-12(e)(2); the need and
interest of the victim and society, N.J.S.A. 2C:43-12(e)(7); the
crime is assaultive or violent in nature or in possible
injurious consequences, N.J.S.A. 2C:43-12(e)(10); the value of
supervisory treatment would be outweighed by the public need for
prosecution, N.J.S.A. 2C:43-12(e)(14); the harm done to society
by abandoning criminal prosecution would outweigh the benefit to
society, N.J.S.A. 2C:43-12(e)(17); the nature of the offense,
Guideline 3(i);3 and the untimely application, Rule 3:28(h). The
probation officer stated that the crime was committed
deliberately with violence or threat of violence against another
person. Accordingly, he reasoned that pursuant to Guideline
3(i)(3), the application should generally be rejected as PTI is
reserved for defendants charged with “victimless” offenses. He
also determined that defendant’s application was untimely
pursuant to Rule 3:28(h), which requires application “no later
than twenty-eight days after indictment.”
3
Guidelines for Operation of Pretrial Intervention in New
Jersey, Pressler, Current N.J. Court Rules, Guideline 3(i) at
1064 (2010) [hereinafter Guidelines].
5
In a letter dated June 2, 2010, the prosecutor agreed with
the probation officer and denied defendant’s PTI application.
The prosecutor relied on the same factors but also found
applicable the victim’s unwillingness to forego prosecution,
N.J.S.A. 2C:43-12(e)(4), because Higgins opposed PTI entry for
defendant. The prosecutor noted the similarity of the
procedural posture of defendant’s application and State v.
Frangione, 369 N.J. Super. 258, 261 (App. Div. 2004), in which
the Appellate Division concluded that a defendant was not
entitled to PTI after his charge had been reduced as part of a
negotiated plea.
Defendant appealed his PTI rejection to the Law Division.
Defendant contended that prior defense counsel had advised
defendant that he was not eligible for PTI because he was
charged with a second-degree offense. He further argued that
Higgins withdrew his objection to defendant’s entry to PTI
before trial. Defendant maintained that had he not been charged
with the second-degree offense, he would have been eligible for
PTI, as he was situated similarly to co-defendant Schwab who was
admitted to PTI. Defendant relied on State v. Halm, 319 N.J.
Super. 569 (App. Div.), certif. denied, 162 N.J. 131 (1999),
arguing that he should be permitted to make the PTI application,
because once the second-degree offense was dismissed, he applied
to PTI within the required ten-day period.
6
On September 29, 2010, the trial court requested that the
State reconsider defendant’s application, asking the State to
clarify why it accepted co-defendant Schwab into PTI but not
defendant. The State again denied defendant’s application on
October 22, 2010, adding that defendant showed no remorse and
that the State did not feel the victim consented to defendant’s
admission to the program. The State reiterated that it reviews
each application individually and concluded that defendant was
“not an appropriate candidate for PTI.”
The trial court admitted defendant into the PTI program
over the prosecutor’s objection. The court found that Rule
3:28(g) and case law, specifically State v. Halm, permitted an
application to PTI after defendant had been found guilty by a
jury. The trial court found that defendant and co-defendant
Schwab were similarly situated and the prosecutor’s decision to
deny defendant PTI entry was a clear error of judgment.
II.
The State appealed to the Appellate Division. The
Appellate Division, in an unpublished opinion, reversed and
remanded. The panel determined that defendant’s PTI application
was not timely because N.J.S.A. 2C:43-12(e) requires PTI
applications to be made “prior to trial.” The panel also noted
that Rule 3:28(h) “contemplates that . . . enrollment into PTI
shall be resolved before or at the pretrial conference, and, in
7
any event, before a plea or verdict.” The panel distinguished
Halm because, in this case, defendant “never made a timely PTI
application and the second-degree crime was charged in the very
indictment which included the third-degree count for which he
was tried.” The panel opined that this case was analogous to
Frangione, because in both cases a PTI application was filed
after guilt was determined and both defendants were charged with
second-degree and third-degree crimes in the same indictment.
The panel also addressed the merits of the PTI application
and concluded that the prosecutor did not grossly or patently
abuse her discretion. The panel found that the record amply
supported the finding that the two defendants were not similarly
situated. The panel noted several factors in the record, such
as the victim’s opposition to defendant’s entry into PTI,
defendant’s aggression against the unconscious victim, co-
defendant Schwab’s remorse, and Schwab’s agreement to testify at
defendant’s trial.
The Appellate Division denied defendant’s subsequent motion
for reconsideration. This Court granted certification. 212
N.J. 455 (2012).
III.
A.
Defendant contends that the record before the prosecutor
permitted his admission to PTI and that the denial of his
8
application, therefore, must be considered a patent and gross
abuse of discretion vested in the prosecutor. Defendant
emphasizes that the victim withdrew his objection to PTI
admission prior to defendant’s post-verdict application.
Defendant maintains that a post-verdict PTI application is
consistent with the purpose of the program. He asserts the
public is always served when justice is evenly applied.
Defendant also urges this Court to resolve the different
outcomes in this appeal and State v. Padilla-Bustamante, a 2011
unpublished Appellate Division opinion, which permitted a
defendant to apply for PTI admission following his acquittal of
second-degree offenses. Defendant argues that both cases are
factually similar and require a similar result.4
B.
The State argues that defendant’s PTI application is time-
barred by Rule 3:28(h), because defendant filed the application
more than three years after the indictment and following trial.
The State emphasizes that the program is designed to permit
resolution of the issue of PTI admission before the pretrial
conference. It contends that disposition before the pretrial
conference complements the speedy trial effort.
4
This unpublished opinion is not binding authority pursuant to
Rule 1:36-3.
9
The State maintains that the trial court decision to
entertain defendant’s post-trial PTI application was contrary to
the legislative intent evinced by the plain language of the PTI
program’s enabling statute, N.J.S.A. 2C:43-12 to -22. The State
argues the program is limited by the statute to applications for
pretrial -- rather than post-trial -- intervention. Citing
State v. Wallace, 146 N.J. 576 (1996), the State argues that
defendant’s third-degree offense that remained for resolution by
the jury after dismissal of the second-degree offense cannot
justify an untimely PTI application. The State contends that
admitting defendant to PTI after a guilty verdict at trial fails
to accomplish the purposes of PTI -- administrative efficiency
and avoidance of the stigma of a criminal conviction.
The State also highlights consequences of post-trial
admission to PTI. First, it argues that such a decision
nullifies a valid verdict. Second, it contends that post-trial
admission to PTI transforms PTI from a pretrial diversionary
program to an unauthorized sentencing alternative.
The State distinguishes State v. Halm on the ground the
defendant in that case filed a pretrial PTI application, unlike
defendant here. The State also distinguishes State v. Padilla-
Bustamante, arguing that the appellate panel ordered a new trial
on other grounds and merely allowed the defendant to submit a
PTI application while expressing no view as to the merits of
10
that application. Addressing the merits of defendant’s PTI
application, the State contends the record fully supports the
decision of the prosecutor to deny admission to this
diversionary program.
C.
The Attorney General, as amicus curiae, contends that
defendant’s application is time-barred and that permitting
defendant into the program after trial would “subvert the
purposes and goals underlying PTI.” The Attorney General
emphasizes that PTI is not an after-verdict sentencing option
but is designed as an alternative to the traditional prosecution
course for a criminal defendant. The Attorney General insists
PTI is a pretrial alternative, viewed as part of the
prosecutor’s charging function. The Attorney General urges that
the Appellate Division judgment be affirmed to “send a clear
message to the lower courts that PTI is a program reserved for
pre-trial consideration.”
The Attorney General also maintains that State v. Halm is
not applicable because the defendant there submitted a timely
PTI application. The Attorney General argues that State v.
Frangione governs this case. Finally, the Attorney General
warns against a misinterpretation of State v. Padilla-Bustamante
and State v. Halm, due to concerns that defendants presumptively
11
ineligible due to charges of first- and second-degree crimes
would apply to PTI in order to preserve their right for
reconsideration if the first- and second-degree crimes were
dismissed at trial or by a guilty plea.
IV.
The initial impetus for introduction of a pretrial
diversion program came from a 1967 report titled President’s
Commission on Law Enforcement and Administration of Justice: The
Challenge of Crime in a Free Society (1967) (President’s
Commission Report). In its searching inquiry of crime in the
United States, it focused on various elements of the criminal
justice system, including the courts. Observing that the
criminal courts are inherently reactive rather than proactive,
the report noted that the ability of the criminal judicial
process to address or prevent future criminal acts is limited to
how courts handle the offenders before it. Id. at 125. Turning
its attention to the pretrial stages of the criminal case, the
President’s Commission Report noted that “early diversion of
some cases from the criminal process” should be considered a
“wholly desirable objective[].” Id. at 130. Recognizing that
prosecutors often confront persons who have committed a criminal
offense for whom the criminal sanction is excessive but who also
need some kind of treatment or supervision, the President’s
Commission Report recommended the “[e]arly identification and
12
diversion to other community resources of those offenders in
need of treatment, for whom full criminal disposition does not
appear required.” Id. at 134.
The success of the first pilot pretrial diversion programs
spawned a second round of pilot programs. Success was defined
in terms of reduced recidivism and development of employable
skills. State v. Leonardis, 71 N.J. 85, 94 (1976). One of the
second-round pilot projects was established in Newark. Ibid.
n.4. Rule 3:28 was adopted by the Court to authorize and govern
the Newark project. Id. at 103.
In 1976, this Court recognized that the implementation of
PTI programs differed from county to county. Id. at 92. In
fact, some counties had not instituted such programs. Id. at
121. This Court noted that the scope of existing programs and
the procedure of pretrial diversion programs may have differed,
but all served the same general purposes of early identification
and referral of offenders who are in need of treatment or may
benefit from rehabilitative efforts and quick and inexpensive
disposition of cases. Id. at 96. This Court emphasized,
however, that “[w]hile the goal of expeditious disposition is
certainly important and central to the PTI concept, it is at the
same time subordinate to the rehabilitative function of PTI.”
Id. at 98.
13
The Court also recognized that the primary goal of
diversion, rehabilitation of a person accused of a criminal
offense, is best accomplished prior to trial. Justice Pashman
stated:
[T]he significance of rehabilitation is also
apparent in the procedural operation of the
PTI program. Because admission to and
participation in a PTI program precedes
trial and often precedes entry of formal
charges, a defendant who successfully
completes the program avoids adjudication of
his guilt. Furthermore, few, if any, PTI
programs require entry of a guilty plea as a
prerequisite to admission in a program. Due
to this procedural aspect of pretrial
intervention, the often counterproductive
stigma of conviction, which accompanies
parole and probation, does not attach to
participants in a PTI program.
[Id. at 99 (internal citations omitted).]
See also President’s Commission Report, supra, at 130 (observing
that diversion programs operating as sentencing alternatives
nullify purpose of avoiding stigma of conviction).
In Leonardis, supra, the Court identified several
deficiencies in two of the operating programs. 71 N.J. at 120-
22. Noting that PTI programs had not been adopted in every
county, this Court directed statewide implementation of the PTI
program. Id. at 121. The Court also mandated that each PTI
program must be administered in accordance with uniform
guidelines. Ibid. Pending amendment of the rule and adoption
of guidelines, each program was required to incorporate four
14
guidelines, including recognition that any defendant accused of
any crime was eligible for admission to a PTI program. Id. at
121-22. Rule 3:28, as originally adopted and as it has evolved
over the years, has established the guidelines for the various
programs adopted by the various counties.
Three years after this Court called for statewide
implementation of PTI, Leonardis, supra, 71 N.J. at 121, the
Legislature adopted a statute governing PTI. Codified as
N.J.S.A. 2C:43-12 to -22, the statute prescribed the terms and
procedures for admission to a PTI program. In doing so, the
Legislature declared that it was the public policy of the State
to provide uniform opportunities to avoid prosecution for a
criminal offense when early rehabilitation services or
supervision may deter future criminal behavior, N.J.S.A. 2C:43-
12(a)(1), or when an applicant might be harmed by imposition of
criminal sanctions, N.J.S.A. 2C:43-12(a)(2). The statute
expressly contemplated application by an accused to a PTI
program or referral by a judge to the program before trial.
N.J.S.A. 2C:43-12(e).
This Court has reviewed various aspects of the
implementation of PTI programs throughout the State. In each
case, we have recognized that PTI is a diversionary program
specifically designed to avoid a trial and the stigma
accompanying a verdict of guilt to any criminal offense. In
15
State v. Nwobu, 139 N.J. 236, 240 (1995), the Court stated,
“[PTI] is a diversionary program through which certain offenders
are able to avoid criminal prosecution by receiving early
rehabilitative services expected to deter future criminal
behavior.” In State v. Brooks, 175 N.J. 215, 223 (2002), the
Court stated the aim of PTI “is to provide prosecutors an
alternate method to dispose of charges levied against qualified
applicants consistent with the interest of the applicant and the
overall interests of society and the criminal justice system.”
Rule 3:28 reflects the stated purpose of PTI. Rule 3:28(h)
provides that “[a]pplication for pretrial intervention shall be
made at the earliest possible opportunity, including before
indictment, but in any event no later than twenty-eight days
after indictment.” Furthermore, review of the application must
proceed without delay. Ibid. The criminal division manager is
required to evaluate and make a recommendation within twenty-
five days of submission of the application; the prosecutor shall
complete a review of the application and inform the trial court
and the defendant within fourteen days of receipt of the
criminal division manager’s recommendation. Ibid. Furthermore,
once a defendant is admitted to a PTI program, any information
disclosed by a participant about the charge or charges against
the participant to a person providing supervisory services is
confidential. R. 3:28(c)(5); see also R. 1:38-3(c)(5)
16
(excluding from public access court records relating to
participants in PTI programs but not fact of enrollment or
conditions imposed by court). Guideline 1 to Rule 3:28
reiterates the purpose of avoiding the stigma and consequences
of a criminal conviction afforded by enrollment in PTI.
In sum, the vision of PTI is to fashion, in appropriate
circumstances, an alternative to the full criminal justice
mechanism of a trial. It contemplates a pretrial decision by
the defendant to seek, and a pretrial decision by the prosecutor
to admit, an offender to this diversionary program. None of the
laudatory purposes of pretrial intervention are fostered by
proceeding to trial and having a jury render a guilty verdict.
Such a procedure not only thwarts the purpose of this particular
diversionary program because the defendant has been found guilty
of a criminal offense but also nullifies a valid verdict of
guilt. We know of no authority that permits a court to nullify
a valid verdict through the device of a belated application to a
diversionary program. Moreover, permitting a defendant found
guilty of a criminal offense to seek admission to PTI transforms
an effective pretrial diversionary program into an alternative
sentencing option. Such action stands the PTI program on its
head.
This appeal illustrates how defendant’s admission to PTI
diverges from the goals and purposes of the program. The events
17
giving rise to the indictment occurred in 2006; a grand jury
indicted defendant in January 2007. Trial commenced more than
three years later. On March 18, 2010, a jury found defendant
guilty of a third-degree offense. Then, almost four years from
the date of the incident that precipitated the criminal charges,
defendant applied for admission to PTI, and was admitted to PTI
over the objection of the prosecutor by the trial court in
January 2011. The facts of this case illustrate that the goals
of early diversion, early rehabilitation efforts, and avoidance
of the stigma of conviction of a criminal offense have been
completely frustrated by defendant’s post-verdict admission to
PTI. It is, therefore, manifest that defendant’s post-verdict
application for and admission to PTI cannot stand.
V.
Since authorizing the first pilot PTI program in Newark in
1970, principles and guidelines have evolved to assure not only
state-wide implementation of PTI but also uniform access to this
laudatory program. While Rule 3:28 and the Guidelines have
evolved over the years to reflect legislative action and case
law, one principle has remained constant: PTI is a pretrial
diversionary program. Admission to PTI following a jury trial
and the return of a guilty verdict is the antithesis of the very
purpose of the program.
18
Therefore, we affirm the judgment of the Appellate Division
reversing the order admitting defendant to PTI. Our holding
that the application for and admission to PTI is out-of-time is
not premised on the fact that defendant did not apply for
admission to PTI within twenty-eight days of the return of the
original indictment in 2007 or the superseding indictment in
2009 or that his application was not submitted and resolved
before the pretrial conference. See State v. Moraes-Pena, 386
N.J. Super. 569, 578 (App. Div.) (emphasizing enrollment in PTI
must precede guilty plea or verdict), certif. denied, 188 N.J.
492 (2006). Instead, our holding is premised on the very nature
of PTI as a pretrial diversionary program. It is not now and
never has been a sentencing alternative following a guilty
verdict.5
VI.
The judgment of the Appellate Division is affirmed and the
matter is remanded to the trial court for imposition of an
appropriate sentence.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, and
PATTERSON join in JUDGE CUFF’s opinion. JUDGE RODRÍGUEZ
(temporarily assigned) did not participate.
5
To the extent State v. Halm, supra, suggests otherwise, we do
not follow it.
19
SUPREME COURT OF NEW JERSEY
NO. A-21 SEPTEMBER TERM 2012
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SEAN BELL,
Defendant-Appellant.
DECIDED May 13, 2014
Chief Justice Rabner PRESIDING
OPINION BY Judge Cuff
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
CHECKLIST AFFIRM/REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUDGE RODRÍGUEZ (t/a) ------------------------ -------------------
JUDGE CUFF (t/a) X
TOTALS 5
1