New Jersey's Pretrial Intervention Program (PTI) was conceived to allow certain criminal offenders to participate in a period of probation, so as to avoid a criminal conviction, as well as the uncertainty and anxiety associated with a criminal prosecution. The PTI Program is controlled in large part by the discretionary decision making of both the prosecutor and the Program’s director. If the candidate is rejected by either the director or the prosecutor the candidate can appeal that decision to the trial court.  There, however, the court will usually endorse that decision unless defendant can show, by clear and convincing evidence, that there was a gross and patent abuse of discretion.  Recently, an appellate panel analyze a trial court's decision to affirm the prosecutor's veto. In that case, the defendant was a 37-year-old college graduate who was incapacitated because of serious neurological problems that required her to live in a special facility and receive daily nursing care. She suffered from anxiety, depression, schizophrenia, seizures and heart problems. She was required to take 24 prescription drugs a day to treat these conditions.

As a result of a tip, an undercover agent managed to purchase marijuana and other drugs from the defendant. She was indicted and charged with a 3rd and 4th degree drug distribution offense. The defendant made an application for the PTI  Program. The prosecutor rejected the application relying upon a guideline provision that said, in essence a person charged with the distribution of a CDS is not an appropriate candidate for the program unless they were drug dependent.  Resultantly, the prosecutor concluded that defendant was presumptively unable to participate in the Program.  That position, however, conflicted with another provision in the prosecutor's written denial which said that the defendant was drug dependent.

The Appellate Division panel looked at the inconsistent position taken by the government, in its rejection letter, and concluded that there was insufficient evidence to find that the defendant was not an appropriate candidate for the Program as a matter of law.  It then remanded the case for a plenary hearing.