On August 30, 2024, the Administrative Office of the New Jersey Courts (AOC) issued a Supplement to Directive #09-19, “Criminal – Updated Pretrial Intervention (PTI) Forms” (June 4, 2019), to address the need for consistency in ordering defendants to resume monitoring by Pretrial Services after they are terminated from PTI, and to provide procedural guidance to courts for defendants who violated their PTI conditions and failed to appear at a PTI termination hearing. The revised form is attached to the Supplement to Directive #09-19, and can be found at https://www.njcourts.gov/sites/default/files/notices/2024/08/n240910c.pdf?cb=f6ad0b81

The AOC explained that although a defendant enrolled in PTI is entitled to a summary PTI termination hearing, the defendant’s presence is not required in order to proceed with the termination. N.J.S.A. 2C:43-13(e); State v. A.S.-M., 444 N.J. Super. 334 (App. Div. 2016). The AOC noted that a review of statewide practices revealed a lack of consistency in the court’s approach to the PTI termination process when a defendant failed to appear for the hearing. In some cases, the court issued a bench warrant and would not proceed with the hearing, which resulted in the defendant tolling their PTI period while being a fugitive from the program.

Importantly, a defendant who is terminated from the PTI program may petition for reinstatement. State v. A.S.-M., 444 N.J. Super. 334 (App. Div. 2016). Time not in the PTI program after a termination and prior to reinstatement is not counted against the defendant’s statutory 3-year maximum term. However, the AOC found that it was unclear whether the period a defendant was an active fugitive from the PTI program may be used to toll the program length beyond the three year maximum. See State v. Fenton, 221 N.J. Super. 16 (Law Div. 1987).

To address this unresolved inconsistency, the AOC directed that vicinages should use the following procedure when a defendant fails to appear at a PTI termination hearing:

1. Before termination from PTI and before a recommendation to terminate PTI is submitted to the court, the vicinage Probation Division Manager or the prosecutor shall provide the defendant and their attorney with a copy of the written recommendation, and the defendant shall be advised of the opportunity to be heard, as required by R. 3:28-7(b)(3).

2. If the defendant fails to appear at the summary hearing, the court shall conduct the hearing in the defendant’s absence, on the record. If the court is satisfied that the defendant should be terminated from PTI, the court shall articulate reasons to substantiate the defendant’s termination from the program. The court shall also record the reasons on the form of order authorized by the Administrative Director.

3. The court may in its discretion issue a bench warrant for the defendant’s arrest. When the defendant is apprehended, the prosecution of the defendant shall proceed in the ordinary course. R. 3:28-7(b)(3).

In the supplement, the AOC thus modified the Pretrial Intervention Order of Termination to add a space to record the court’s reasons for terminating the defendant at the summary PTI termination hearing. The Supplement does not, however, affect the defendant’s ability to petition for reinstatement or to appeal a PTI termination.

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