Wednesday, January 14, 2009

RULE 3:29. STATEMENT OF REASONS FOR DISPOSITION OF MOTION OR APPLICATION

The court shall place on the record the reasons supporting its decision on a motion to dismiss an indictment, accusation or complaint, or on an application for diversion, change or reduction of sentence, or other disposition of a criminal matter.

Rule 3:28. Pretrial Intervention Programs

(a) Each Assignment Judge shall designate a judge or judges to act on all matters pertaining to pretrial intervention programs in the vicinage in accordance with N.J.S.A. 2C:43-12 and -13.

(b) Where a defendant charged with a penal or criminal offense has been accepted by the program, the designated judge may, on the recommendation of the criminal division manager and with the consent of the prosecutor and the defendant, postpone all further proceedings against said defendant on such charges for a period not to exceed thirty-six months.

(c) At the conclusion of the period set forth in paragraph (b) or earlier upon motion of the criminal division manager, the designated judge shall make one of the following dispositions:

(1) On recommendation of the criminal division manager and with the consent of the prosecutor and the defendant, dismiss the complaint, indictment or accusation against the defendant, such a dismissal to be designated "matter adjusted-complaint (or indictment or accusation) dismissed"; or

(2) On recommendation of the criminal division manager and with the consent of the prosecutor and the defendant, further postpone all proceedings against such defendant on such charges for an additional period of time as long as the aggregate of postponement periods under the rule does not exceed thirty-six months; or

(3) On the written recommendation of the criminal division manager or the prosecutor or on the court's own motion order the prosecution of the defendant to proceed in the ordinary course. Where a recommendation for such an order is made by the criminal division manager or the prosecutor, such person shall, before submitting such recommendation to the designated judge, provide the defendant or defendant's attorney with a copy of such recommendation, shall advise the defendant of the opportunity to be heard thereon, and the designated judge shall afford the defendant such a hearing.

(4) During the conduct of hearings subsequent to an order returning the defendant to prosecution in the ordinary course, no program records, investigative reports, reports made for a court or prosecuting attorney, or statements made by the defendant to program staff shall be admissible in evidence against such defendant.

(5) No statement or other disclosure regarding the charge or charges against the participant made or disclosed by a participant in pretrial intervention to a person designated to provide supervisory treatment shall be disclosed by such person at any time, to the prosecutor, nor shall any such statement or disclosure be admitted as evidence in any civil or criminal proceeding against the participant, provided that the criminal division manager shall not be prevented from informing the prosecutor, or the court, on request or otherwise, whether the participant is satisfactorily responding to supervisory treatment.

(d) Where proceedings have been postponed against a defendant for an additional period as provided in paragraph (c)(2), at the conclusion of such period the designated judge may not again postpone proceedings but shall make a disposition in accordance with paragraph (c)(1) or (3). The aggregate of postponement periods under this rule shall in no case exceed thirty-six months.

(e) The Administrative Director of the Courts shall establish and maintain a Pretrial Intervention Registry for the purpose of determining applications, enrollments and the degree of completion thereof by a defendant in a program approved by the Supreme Court in accordance with paragraph (a). The Pretrial Intervention Registry shall contain such information and material as directed by the Supreme Court. No order to expunge or seal records of arrest after dismissal of a complaint, indictment or accusation under paragraph (c) or (d) shall bar the retention of material and information in the Pretrial Intervention Registry for the purposes of determining a defendant's prior applications to, enrollments in and the degree of completion of a Pretrial Intervention Program or for statistical reports required of the Administrative Director of the Courts, by law or the Supreme Court.

(f) When the criminal division manager and prosecutor reject an application for participation in the pretrial intervention program, there shall be no pretrial review by an appellate court if the rejection is upheld by the designated judge or the Assignment Judge. An order enrolling a defendant into the pretrial intervention program over the prosecutor's objection shall be deemed final for purposes of appeal, as of right, and shall be automatically stayed for fifteen days following its entry and thereafter pending appellate review.

(g) Denial of acceptance pursuant to this rule may be reviewed on appeal from a judgment of conviction notwithstanding that such judgment is entered following a plea of guilty.

(h) Application 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. The criminal division manager shall complete the evaluation and make a recommendation within twenty-five days of the filing of the application. The prosecutor shall complete a review of the application and inform the court and defendant within fourteen days of the receipt of the criminal division manager's recommendation.

An appeal by the defendant shall be made on motion to the Presiding Judge of the Criminal Division or to the judge to whom the case has been assigned within ten days after the rejection and shall be made returnable at the next status conference or at such time as the judge determines will promote an expeditious disposition of the case.

Where application is made pre-indictment, the prosecutor may withhold action on the application until the matter has been presented to the grand jury.



Note: Adopted October 7, 1970, effective immediately. Paragraphs (a)(b)(c)(d) amended June 29, 1973, to be effective September 10, 1973; caption and paragraphs (a)(b)(c)(d) amended April 1, 1974 effective immediately; paragraph (e) adopted January 10, 1979 to be effective January 15, 1979; paragraphs (a)(b)(c)(d) amended August 28, 1979 to be effective September 1, 1979; paragraphs (f) and (g) adopted October 25, 1982 to be effective December 1, 1982; paragraphs (a) (b) (c) (d) and (f) amended and paragraph (h) added July 13, 1994, to be effective January 1, 1995; paragraph (f) amended June 28, 1996 to be effective September 1, 1996; paragraph (f) amended July 12, 2002 to be effective September 3, 2002; paragraph (c)(4) amended June 15, 2007 to be effective September 1, 2007.



GUIDELINES FOR OPERATION OF PRETRIAL INTERVENTION IN NEW JERSEY

As Amended Effective September 1, 1996.

SUPREME COURT OF NEW JERSEY

ORDERED that the attached revised guidelines governing pretrial intervention programs are approved for implementation as applicable in counties where such programs have been authorized by the Supreme Court pursuant to R. 3:28; and
FURTHER ORDERED that the guidelines approved by the order of January 10, 1979 arehereby superceded.

For the Court,
Robert N. Wilentz

C.J.

Dated: July 13, 1994

Guideline 1

The purposes of pretrial intervention are:
(a) To provide defendants with opportunities to avoid ordinary prosecution by receiving early rehabilitative services, when such services can reasonably be expected to deter future criminal behavior by the defendant, and when there is an apparent causal connection between the offense charged and the rehabilitative need, without which cause both the alleged offense and the need to prosecute might not have occurred.
(b) To provide an alternative to prosecution for defendants who might be harmed by the imposition of criminal sanctions as presently administered, when such an alternative can be expected to serve as sufficient sanction to deter criminal conduct.
(c) To provide a mechanism for permitting the least burdensome form of prosecution possible for defendants charged with "victimless" offenses.
(d) To assist in the relief of presently overburdened criminal calendars in order to focus expenditure of criminal justice resources on matters involving serious criminality and severe correctional problems.
(e) To deter future criminal or disorderly behavior by a defendant/participant in pretrial intervention.

Comment

Guideline 1(a) states a rehabilitative model on which PTI programs in New Jersey are based. The rehabilitative model emphasizes that social, cultural and economic conditions often result in a defendant's choice of environmental compulsion to commit crime. PTI seeks to solve personal problems which tend to result from the conditions that appear to cause crime.
Guideline 1(b) recognizes that diversion in appropriate circumstances can serve as sufficient sanction to deter future criminal conduct.
Guideline 1(c) provides for the use of PTI as a mechanism for minimizing penetration into the criminal process for broad categories of offenders accused of "victimless crimes," without relinquishing criminal justice control over such persons while statutes proscriptive of such behavior remain in force.
Guideline 1(d) provides for removing from ordinary prosecution those who can be deterred from criminal behavior by short term rehabilitative work or supervision. It is to be emphasized that the potential for rehabilitation must be considered in light of the time periods embodied in Rule 3:28(b), (c), (d).
The deterrence of criminal behavior in many cases requires intensive work: counseling, psychotherapy, drug-abuse prevention and control, employment placement. Programs in these cases should be measured against available treatment facilities and the time constraints of PTI. For other defendants, however, no more than a supervised pretrial probationary period may be necessary when no extensive need for rehabilitative services can be discerned.
Guideline 1(e) acknowledges that pre-conviction rehabilitation can be in the public interest when it results in the deterrence of future misconduct.

Guideline 2

Eligibility for PTI is broad enough to include all defendants who demonstrate sufficient effort to effect necessary behavioral change and show that future criminal behavior will not occur. Any defendant accused of crime shall be eligible for admission into a PTI program. When the application indicates factors which would ordinarily lead to exclusion under the guidelines established hereinafter, the applicant nevertheless shall have the opportunity to present to the criminal division manager, and through the criminal division manager to the prosecutor, any facts or materials demonstrating the defendant's amenability to the rehabilitative process, showing compelling reasons justifying the defendant's admission, and establishing that a decision against enrollment would be arbitrary and unreasonable.

Comment

Guideline 2 provides that each applicant for a PTI program is entitled to full and fair consideration of his or her application. When the application indicates factors that cause either the criminal division manager to reject the application or the prosecutor to deny consent to an enrollment, a statement particularizing the reasons for the rejection or the withholding of consent by the prosecutor must be furnished to the defendant. If the defendant wishes to challenge a rejection by the criminal division manager, or the prosecutor's denial of consent to enrollment, the defendant may do so in accordance with the procedures set forth in guidelines 6 and 8. It is the duty of the applicant to allege and present any facts and materials to the criminal division manager for reconsideration either by the criminal division manager or prosecutor, if the prosecutor has denied consent, showing compelling reasons justifying admission, and establishing that a decision against enrollment would be arbitrary and unreasonable. The presentation of this material should be done concurrently with the filing of a motion under guideline 8 for review of a decision by a criminal division manager not to recommend or of a prosecutor not to consent to enrollment.

Guideline 3

In evaluating a defendant's application for participation in a pretrial intervention program, consideration shall be given to the criteria set forth in N.J.S.A. 2C:43-12(e). In addition thereto, the following factors shall also be considered together with other relevant circumstances:
(a) Age. Pretrial intervention is designed to deal only with adult defendants who, in accordance with New Jersey law, are those persons above the age of 18. Also included are those juveniles between the ages of 16 and 18 who are treated as adults under R. 5:9-5.
(b) Residence. New Jersey's PTI program is designed to deal with the problem of crime in New Jersey. Only those defendants are ineligible who reside such distances from New Jersey as to bar effective counseling or supervisory procedures.
(c) Jurisdiction. Only defendants charged with criminal or penal offenses in the criminal or municipal courts of the State of New Jersey may be enrolled pursuant to R. 3:28.
(d) Minor Violations. Defendants should not be eligible for enrollment if the likely disposition would result in a suspended sentence without probation or a fine. Those charged with ordinance, health code and other similar violations are not eligible.
(e) Prior Record of Convictions. While the pretrial intervention program is not limited to "first offenders", defendants who have been previously convicted of a criminal offense should ordinarily be excluded. Such defendants who have at any prior time been convicted of a first orsecond degree crime or who irrespective of the degree of the crime have completed a term of probation, incarceration or parole within five years prior to the date of application for diversion shall ordinarily not be considered for enrollment in PTI except on joint application by the defendant and the prosecutor. Defendants charged with more than one offense may be considered for enrollment.
(f) Parolees and Probationers. Defendants who, at the time of arrest, are probationers or parolees should be considered for enrollment under R. 3:28 only after consultation with the Chief Probation Officer or District Parole Supervisor whose departments supervise the defendants, and only after they have agreed that revocation of probation or parole need not be recommended or after the appropriate authority has made the decision not to revoke probation or parole.
(g) Defendants Previously Diverted. Supervisory treatment may occur only once with respect to any defendant who has previously been enrolled in a program of pretrial intervention or conditionally discharged pursuant to N.J.S.A. 24:21-27 or N.J.S.A. 2C:36A-1. All applications for enrollment in a PTI program must proceed in accordance with the rules of the Supreme Court and these guidelines after reference to the Pretrial Intervention Registry established pursuant to R. 3:28(e) and N.J.S.A. 2C:43-21(a). No order to expunge or seal records of arrest after dismissal of a complaint, indictment or accusation under paragraph (c) or (d) shall bar the retention of material and information in the Pretrial Intervention Registry for the purposes of determining a defendant's prior applications to, enrollments in, and the degree of completion of a Pretrial Intervention Program or for statistical reports required of the Administrative Director of the Courts, by law or the Supreme Court.
(h) Eligibility Under N.J.S.A. 24:21-27 or N.J.S.A. 2C:36A-1. The statutes set forth the criteria for eligibility and guidelines for exclusion. Defendants eligible for pretrial intervention or conditional discharge pursuant to N.J.S.A. 2C:36A-1 or § 27 of the Controlled Dangerous Substances Act may be placed under the supervision of a pretrial intervention program.
(i) Assessment of the Nature of the Offense. Any defendant charged with crime is eligible for enrollment in a PTI program, but the nature of the offense is a factor to be considered in reviewing the application. If the crime was (1) part of organized criminal activity; or (2) part of a continuing criminal business or enterprise; or (3) deliberately committed with violence or threat of violence against another person; or (4) a breach of the public trust where admission to a PTI program would deprecate the seriousness of defendant's crime, the defendant's application should generally be rejected. A defendant charged with a first or second degree offense or sale or dispensing of Schedule I or II narcotic drugs as defined in L.1970, c. 226 (N.J.S.A. 24:21-1 et seq.) by persons not drug dependent, should ordinarily not be considered for enrollment in a PTI program except on joint application by the defendant and the prosecutor. However, in such cases, the applicant shall have the opportunity to present to the criminal division manager, and through the criminal division manager to the prosecutor, any facts or materials demonstrating the applicant's amenability to the rehabilitative process, showing compelling reasons justifying the applicant's admission and establishing that a decision against enrollment would be arbitrary and unreasonable.
(j) Co-defendants. The impact of diversion on the prosecution of co-defendants is a factor to be considered.
(k) Restitution and Community Service. A restitution or community service requirement, or both, may be included as part of an individual's service plan when such a requirement promises to aid the rehabilitation of the offender. Any such requirement and its terms shall bejudicially determined at the time of enrollment following recommendation by the criminal division manager and consent by the Prosecutor. Evidence of the restitution condition is not admissible against defendant in any subsequent civil or criminal proceeding. Admission to the program shall not be denied solely on the basis of anticipated inability to meet a restitution requirement. Where appropriate to further rehabilitation, symbolic or partial restitution may be included in the service.

Comment

Guideline 3, in its introductory statement, requires that the statutory criteria of N.J.S.A. 2C:43-12(e) be considered in the evaluation of a defendant's application for pretrial intervention. That statutory provision requires consideration of those criteria "among others." Accordingly, the original criteria of this guideline have also been retained as explanatory of and supplemental to the statutory criteria. For convenience in reference, the statutory criteria are as follows:
(1) The nature of the offense;
(2) The facts of the case;
(3) The motivation and age of the defendant;
(4) The desire of the complainant or victim to forego prosecution;
(5) The existence of personal problems and character traits which may be related to the applicant's crime and for which services are unavailable within the criminal justice system, or which may be provided more effectively through supervisory treatment and the probability that the causes of criminal behavior can be controlled by proper treatment;
(6) The likelihood that the applicant's crime is related to a condition or situation that would be conducive to change through his participation in supervisory treatment;
(7) The needs and interests of the victim and society;
(8) The extent to which the applicant's crime constitutes part of a continuing pattern of anti-social behavior;
(9) The applicant's record of criminal and penal violations and the extent to which he may present a substantial danger to others;
(10) Whether or not the crime is of an assaultive or violent nature, whether in the criminal act itself or in the possible injurious consequences of such behavior;
(11) Consideration of whether or not prosecution would exacerbate the social problem that led to the applicant's criminal act;
(12) The history of the use of physical violence toward others;
(13) Any involvement of the applicant with organized crime;
(14) Whether or not the crime is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution;

(15) Whether or not the applicant's involvement with other people in the crime charged or in other crime is such that the interest of the State would be best served by processing his case through traditional criminal justice system procedures;
(16) Whether or not applicant's participation in pretrial intervention will adversely affect the prosecution of co-defendants; and
(17) Whether or not the harm done to society by abandoning criminal prosecution would outweigh the benefits to society from channeling an offender into a supervisory treatment program.
Guideline 3(a) indicates that the services of PTI programs may, in appropriate instances and at the request of juvenile authorities and programs, be made available to juvenile defendants when the need for inter-program cooperative work is indicated.
Under Guideline 3(b), residents of other States, charged with offenses in New Jersey counties in which there exist pretrial intervention programs may, with the approval of the prosecuting attorney, the designated judge, and Administrative Office of the Courts, be permitted to participate in such out-of-state program while enrolled pursuant to R. 3:28.
Regardless of the New Jersey jurisdiction in which the complaint, indictment or accusation has been filed, defendants or participants may, with the agreement of the PTI coordinators involved, be transferred for participation among the various county or vicinage programs.
Guideline 3(c) establishes jurisdictional requirements. However, defendants charged in other States or in the Federal Courts, may in appropriate instances and with the permission of the Administrative Office of the Court, be permitted to participate in the counseling or supervision regimes of the county or vicinage PTI programs on request of the Federal Authorities or a PTI program in another State.
Guideline 3(d) sets forth the policy that those charged with minor violations should not be admitted to a PTI program. It is felt that while no per se exclusion of non-indictable offenses is appropriate, the PTI process is not appropriate for such cases which do not involve a potential sentence of consequence. Rodriguez v. Rosenblatt, 58 N.J. 281, 277 A.2d 216 (1971).1
Guideline 3(e) makes it clear that a prior criminal record may be indicative of a behavioral pattern not conducive to short term rehabilitation. Therefore, pretrial intervention should ordinarily be limited to persons who have not previously been convicted of a crime and hence a rebuttable presumption against enrollment is created by the fact of a prior conviction. An even heavier onus is placed upon defendants whose prior conviction is of a first or second degree crime or who have completed a term of imprisonment, probation or parole within the five-year period immediately preceding the application for diversion. As to those defendants, admission to the program is ordinarily dependent upon the prosecutor joining in the PTI application.

Guideline 3(f) sets forth a policy permitting probationers and parolees to enter PTI programs. Since the parolee/probationer is under the supervision of the District Parole Supervisor or Chief Probation Officer, consultation should be sought prior to recommending enrollment of the defendant into a PTI program.
Guideline 3(g) creates a bar against admission into a PTI program for those defendants who have previously been diverted under N.J.S.A. 2C:43-12 et seq. or conditionally discharged pursuant to N.J.S.A. 24:21-27 or N.J.S.A. 2C:36A-1. The Pretrial Intervention Registry established pursuant to N.J.S.A. 2C:43-21(a) and R. 3:28 serves as the means of identifying defendants previously diverted through a PTI program. This registry is designed to complement the Controlled Dangerous Substance Registry Act of 1970, pursuant to N.J.S.A. 26:2G-17 et seq.
Guideline 3(h) deems it appropriate that PTI programs may assume the supervision of N.J.S.A. 24:21-27 or N.J.S.A. 2C:36A-1 cases.
Guideline 3(i) recognizes that consistent with State v. Leonardis, 71 N.J. 85, 363 A.2d321 (1976) and 73 N.J. 360, 375 A.2d 607 (1977), there must be a balance struck between a defendant's amenability to correction, responsiveness to rehabilitation and the nature of the offense. It is to be emphasized that while all persons are eligible for pretrial intervention programs, those charged with offenses encompassed within certain enumerated categories must bear the burden of presenting compelling facts and materials justifying admission. First and second degree crimes (and their Title 2A cognates) and the sale or dispensing of Schedule I and II narcotics by persons not drug dependent are specific categories of offenses that establish a rebuttable presumption against admission of defendants into a PTI program. This presumption reflects the public policy of PTI. PTI programs should ordinarily reject applications by defendants who fall within these categories unless the prosecutor has affirmatively joined in the application. A heavy burden rests with the defendant to present to the criminal division manager at the time of application (a) proof that the prosecutor has joined in the application and (b) any material that would otherwise rebut the presumption against enrollment. When a defendant charged with a first or second degree crime or the sale or dispensing of Schedule I or II narcotics has been rejected because the prosecutor refuses to consent to the filing of the application, or because in the sound discretion of the criminal division manager the defendant has not rebutted the presumption against admission, the burden lies with the defendant upon appeal to the court to show that the prosecutor or criminal division manager abused such discretion. When an application is rejected because the defendant is charged with a crime of the first or second degree or sale or dispensing of Schedule I or II narcotics, and the prosecutor refuses to join affirmatively in the filing of an application or later refuses to conent to enrollment, such refusal should create a rebuttable presumption against enrollment.
Guideline 3(k) recognizes that the use of restitution and community service may play an integral role in rehabilitation. Requiring either is strongly consonant with the individual approach defined in State v. Leonardis, 71 N.J. 85, 363 A.2d 321 (1976) and 73 N.J. 360, 375 A.2d 607 (1977), which emphasized the needs of the offender. In determining the restitution requirement and its terms including ability of the offender to pay, the Court should rely on the procedures outlined in State in Interest of DGW, 70 N.J. 488, 361 A.2d 513 (1976) and State v. Harris, 70 N.J. 586 (1976).
Full restitution need not be completed during participation in the program. In determining whether a restitution requirement has been fulfilled, the designated judge shall consider good-faith efforts by the defendant. In appropriate cases, at the conclusion of participation, a civil judgment by confession may be entered by the court. However, restitution should never be used in PTI for the sole purpose of collecting monies for victims.

Guideline 4

Enrollment in PTI programs should be conditioned upon neither informal admission nor entry of a plea of guilty. Enrollment of defendants who maintain their innocence should be permitted unless the defendant's attitude would render pretrial intervention ineffective.

Comment

A PTI program is presented to defendants as an opportunity to earn a dismissal of charges for social reasons and reasons of present and future behavior, legal guilt or innocence notwithstanding. This stance produces a relation of trust between counselor and defendant. Within the context of pretrial intervention when and whether guilt should be admitted is adecision for counselors. Counselors should be free to handle each case individually according to their best judgment.
Neither admission of guilt nor acknowledgment of responsibility is required. Steps to bar participation solely on such grounds would be an unwarranted discrimination.
Nevertheless, many guilty defendants blame their behavior on society, family, friends or circumstance, and avoid recognition of the extent of their own role and responsibility. While such an attitude continues, it is unlikely that behavioral change can occur as a result of short-term rehabilitative work. An understanding and acceptance of responsibility for behavior achieved through counseling, can and often does, result in the beginnings of the defendant's ability to control his/her acts and is an indication that rehabilitation may, in large measure, have been achieved.

Guideline 5

Effective operation of pretrial intervention programs requires that a relationship of confidence and trust be initiated and maintained between participating defendants and staff. No information, therefore, obtained as a result of a defendant's application to or participation in a pretrial intervention program should be used, in any subsequent proceeding, against his or her advantage.

Comment

That a relationship based on trust is necessary for the rehabilitation/attitude change process to operate cannot seriously be doubted, and the policy reflected in the admissibility and defendant protection provisions of R. 3:28 and R. 1:38 recognizes such a need. The priority of the maintenance of the counselor-participant relation over the need for disclosures resulting from this relationship is the same, of course, as the priority for the maintenance of, for example, the confidentiality of lawyer-client, physician/psychologist-patient communications. (Counselors should feel free to shroud their association in an air of confidentiality. Use of information gathered in this process would most likely be barred from future proceedings "as contrary to basic standards of due process and fundamental fairness." See In the Interest of J.P.B., 143 N.J.Super. 96, 362 A.2d 1183 (App.Div.1976). Of course, defendants who give false information on PTI applications may subject themselves to charges of perjury or false swearing in instances where supporting affidavits may be required by the criminal division manager. Affidavits relating to the facts and circumstances of the underlying offense shall not be required.)
The essential PTI format is to give participating defendants a true second chance to accomplish rehabilitation or to show otherwise that criminal conduct is not likely to occur in the future; and if the defendant fails in this effort, to return him or her to that stage of ordinary prosecution at which proceedings had been stopped under R. 3:28, and to the extent possible, enable prosecution to take place as if such defendants had not participated in the PTI program so that defendants will not be prejudiced by an unsuccessful attempt to earn a R. 3:28 dismissal.

Guideline 6

Application for PTI should be made as soon as possible after commencement of proceedings, but, where an indictable offense is charged, not later than 28 days after indictment. All applications for PTI should be processed in the order of their filing. However, where the application is filed after an indictment has been returned, the PTI Program should complete itsevaluation and make its recommendation thereon within 25 days after filing. The prosecutor should complete a review and advise the defendant within 14 days thereafter. An appeal by defendant to the trial court shall be brought within 10 days after the rejection notice and should be determined either before or at the pretrial conference.

Comment

To relieve defendants from the anxiety of facing prosecution, to apply appropriate rehabilitative measures at an early date, and to effect savings in criminal justice resources, PTI programs should endeavor to divert qualified defendants from the ordinary course of prosecution as soon as possible after the filing of a complaint. The court must advise defendant of the opportunity to be considered for PTI at the first appearance before the court. See R. 3:4-2. While a PTI application should be made before indictment, there are nevertheless problems involved in securing public defender counsel before arraignment. Thus, while pre-indictment filing is encouraged, the application may be made no later than 28 days after indictment, but not thereafter. This time requirement should permit all defendants sufficient opportunity to make a voluntary and informed choice concerning enrollment in a PTI program.
The time requirements set forth in the guidelines for evaluation, recommendation and review are intended to enable complete processing of a defendant's application before the pretrial conference. See R. 3:9-1e. Early filing as encouraged by this guideline, will afford PTI programs and prosecutors the opportunity to manage their resources better by providing them sufficient time to make informed evaluations. The time limits for processing applications are designed to facilitate speedy trials and are realistic in view of the limited scope of review following rejection.

Guideline 7

Where application is made in an indictable offense, the prosecutor may withhold action on the application until the matter has been presented to the grand jury.

Comment

Guideline 7 recognizes that at times it may be in the public interest to have a particular defendant screened out of the criminal justice system, either by administrative decision or grand jury action, rather than diverted into a PTI program. Thus, the prosecutor is given the discretion to choose an appropriate route and the court will not be burdened by hearing challenges if no indictment is to be returned. However, the option of delaying action until the grand jury has voted on the case should be considered only in rare instances. Generally, expeditious handling of PTI applications is in consonance with the purpose of diversion. Of course, if the prosecutor consents to the application, enrollment into a PTI program should not be delayed and the defendant should generally be enrolled before indictment.

Guideline 8

The decisions and reasons therefor made by the designated judges (or Assignment Judges), prosecutors and criminal division managers in granting or denying defendants' applications for PTI enrollment, in recommending and ordering termination from the program or dismissal of charges, in all cases must be reduced to writing and disclosed to defendant.
A defendant may be accepted into a PTI program by the designated judge (or theAssignment Judge) on recommendation of the criminal division manager, and with the consent of the prosecuting attorney and the defendant. Applications that are recommended for enrollment by the criminal division manager and consented to by the prosecutor must be presented to the designated judge (or Assignment Judge) authorized to enter orders. If a defendant desires to challenge the decision of a criminal division manager not to recommend enrollment or of a prosecutor refusing to consent to enrollment into a PTI program, a motion must be filed before the designated judge (or the Assignment Judge) authorized to enter orders under R. 3:28. The challenge is to be based upon alleged arbitrary or capricious action, and the defendant has the burden of showing that the criminal division manager or prosecutor abused discretion in processing the application. No direct appeal can be filed to the Appellate Division challenging the actions of the criminal division manager or the prosecutor. The decision of the criminal division manager or prosecutor may be challenged at a hearing on defendant's motion before the designated judge (or Assignment Judge) and, thereafter, defendant or prosecutor can seek leave to appeal from the court's decision denying or permitting enrollment.
A defendant shall also be entitled to a hearing challenging a criminal division manager or prosecutor's recommendation (following an initial or subsequent adjournment under Rule 3:28) that the prosecution of defendant proceed in the normal course. The decision of the court shall be appealable by the defendant or the prosecutor as in the case of any interlocutory order.
A defendant aggrieved by the decision of the designated judge or assignment judge respecting the joint decision of the criminal division manager and prosecutor to deny an application for participation in a pretrial intervention program may not seek appellate review thereof until after entry of judgment of conviction. A defendant may then seek such review even if the judgment was entered following a plea of guilty. However, a prosecutor whose denial of consent has been reversed by the designated judge or assignment judge may seek leave to appeal pursuant to R. 2:2.

Guidelines 2, 3, 6 and 8 and Comments to Guidelines 2, 3, 5 and 6 amended July 13, 1994 to be effective January 1, 1995; Guidelines 3(g) and (h) and Comments to Guidelines 3(g) and (h) amended June 28, 1996 to be effective September 1, 1996.

1 Of course all defendants charged with an indictable offense are eligible for PTI.

3:26-8. Bail Sufficiency; Source Hearing

(a) Time and Notice. The State may request either orally or in writing, at any time prior to the commencement of trial, a hearing pursuant to N.J.S.A. 2A:162-13. The request shall be made on notice to the defendant’s counsel, or on notice to the defendant if he or she is unrepresented at the time the request is made.

(b) Request for Hearing. If the State requests a hearing pursuant to N.J.S.A. 2A:162-13 and the defendant is charged with a crime enumerated in paragraph (a) of N.J.S.A. 2A:162-12, the court shall conduct a hearing within the time prescribed by section (c) hereof. If the State requests a hearing pursuant to N.J.S.A. 2A:162-13 and the defendant is not charged with a crime enumerated in paragraph (a) of N.J.S.A. 2A:162-12, the State must demonstrate a reasonable and well grounded basis to warrant an inquiry by the court regarding:

(1) the reliability of the obligor or person posting cash bail, the value and sufficiency of any security offered, the relationship of the obligor or person posting cash bail to the defendant, and the defendant’s interest in ensuring that the bail is not forfeited, or

(2) whether the funds used to post the cash bail or secure the bail bond were acquired as a result of criminal or unlawful conduct.

If the court grants the State’s request for a hearing as to a defendant who is not charged with a crime enumerated in paragraph (a) of N.J.S.A. 2A:162-12, the court shall set forth on the record and in the bail order the reasons for granting the request.

(c) Time of Hearing. The court shall conduct a hearing required or authorized pursuant to N.J.S.A. 2A:162-13 within three (3) business days after bail is posted or proffered if defendant is incarcerated, or within a reasonable period of time after granting the request if the defendant has been released on bail.

(d) Release of Defendant; Failure to Appear. If the defendant has not yet been released when the State requests a hearing for a person charged with a crime enumerated in N.J.S.A. 2A:162-12 or when the court grants a request for a hearing for any other offense, the defendant shall remain in custody until further order of the court. If the defendant has already been released after posting bail, the defendant’s bail status shall be maintained until the completion of the hearing and the defendant will be notified when to appear in court for the hearing. Should the defendant fail to appear for the hearing the bail shall be forfeited and a warrant shall issue for the arrest of the defendant.

(e) Hearing. At the hearing pursuant to N.J.S.A. 2A:162-13, the court may order the examination, under oath or otherwise, of any person who may possess relevant information, and may inquire into any matter appropriate to its determination, including, but not limited to, the following:

(1) The character, background and reputation of the person posting cash bail;

(2) The relationship of the person posting cash bail or securing a bail bond to the defendant;

(3) The source of any money posted as cash bail and whether any such money constitutes the fruits of criminal or unlawful conduct;

(4) The character, background and reputation of any person who has indemnified or agreed to indemnify an obligor on the bond;

(5) The character, background, and reputation of any obligor, or, in the case of a surety bond, the qualifications of the surety and its executing agent;

(6) The source of any money or property deposited by any obligor as security and whether such money or property constitutes the fruits of criminal or unlawful conduct; and

(7) The source of any money or property delivered or agreed to be delivered by any obligor as indemnification on the bond and whether such money or property constitutes the fruits of criminal or unlawful conduct.

(f) Order. At the conclusion of the hearing, the court shall make specific findings of fact and issue an order complying with N.J.S.A. 2A:162-13(b) regarding the person posting or proffering cash bail or serving as obligor on any bond, the sufficiency and value of the security for bail posted or proffered by the defendant, the source of funds used to post cash bail or secure a bail bond and identifying the approved source(s) of bail. The defendant shall not be released from custody unless he or she complies with the conditions of the court’s order. If the defendant has already been released, he or she shall be returned to custody, immediately, and not be released until the conditions of the court order regarding the bail are satisfied.

(g) Nothing herein shall prevent the court from otherwise setting bail, or altering bail on motion therefor, in accordance with the rules of court.

3:26-7. Exoneration

When the condition of the recognizance has been satisfied or the forfeiture thereof has been set aside or remitted, the court shall exonerate the obligors and release any bail. A surety may be exonerated by a deposit of cash in the amount of the recognizance or by a timely surrender of the defendant into custody.

3:26-6. Forfeiture

(a) Declaration; Notice. Upon breach of a condition of a recognizance, the court on its own motion shall order forfeiture of the bail, and the finance division manager shall forthwith send notice of the forfeiture, by ordinary mail, to county counsel, the defendant, and any surety or insurer, bail agent or agency whose names appear on the bail recognizance. Notice to any insurer, bail agent or agency shall be sent to the address recorded in the Bail Registry maintained by the Clerk of the Superior Court pursuant to R. 1:13-3. The notice shall direct that judgment will be entered as to any outstanding bail absent a written objection seeking to set aside the forfeiture, which must be filed within 75 days of the date of the notice. The notice shall also advise the insurer that if it fails to satisfy a judgment entered pursuant to paragraph (c), and until satisfaction is made, it shall be removed from the Bail Registry and its bail agents and agencies, guarantors, and other persons or entities authorized to administer or manage its bail bond business in this State will have no further authority to act for it, and their names, as acting for the insurer, will be removed from the Bail Registry. In addition the bail agent or agency, guarantor or other person or entity authorized by the insurer to administer or manage its bail bond business in this State who acted in such capacity with respect to the forfeited bond will be precluded, by removal from the Bail Registry, from so acting for any other insurer until the judgment has been satisfied. The court shall not enter judgment until the merits of any objection are determined either on the papers filed or, if the court so orders for good cause, at a hearing. In the absence of objection, judgment shall be entered as provided in paragraph (c), but the court may thereafter remit it, in whole or part, in the interest of justice.

(b) Setting Aside. The court may, either before or after the entry of judgment, direct that an order of forfeiture or judgment be set aside, in whole or in part, if its enforcement is not required in the interest of justice upon such conditions as it imposes.

(c) Enforcement; Remission. In the absence of a motion, when a forfeiture is not set aside or satisfied, the court shall, upon expiration of the 75 days provided for in paragraph (a), summarily enter a judgment of default for any outstanding bail and execution may issue thereon. After entry of such judgment, the court may remit it in whole or in part in the interest of justice. If, following the court's decision on an objection pursuant to paragraph (a) of this rule, the forfeiture is not set aside or satisfied in whole or part, the court shall enter judgment for any outstanding bail and, in the absence of satisfaction thereof, execution may issue thereon.

Judgments entered pursuant to this rule shall also advise the insurer that if it fails to satisfy a judgment, and until satisfaction is made, it shall be removed from the Bail Registry and its bail agents and agencies, guarantors, and other persons or entities authorized to administer or manage its bail bond business in this State will have no further authority to act for it, and their names, as acting for the insurer, will be removed from the Bail Registry, as provided in paragraph (a). A copy of the judgment entered pursuant to this rule is to be served by ordinary mail to county counsel, and on any surety or any insurer, bail agent or agency named in the judgment. Notice to any insurer, bail agent or agency shall be sent to the address recorded in the Bail Registry. In any contested proceeding, county counsel shall appear on behalf of the government. County counsel shall be responsible for collection of forfeited amounts.

3:26-5. Justification of Sureties

Every surety, except an approved corporate surety, shall justify by affidavit and be required to describe therein the property by which the surety proposes to justify and the encumbrances thereon, the number and amount of other recognizances and undertakings for bail entered into by the surety and remaining undischarged, if any, and all the surety's other liabilities. No recognizance shall be approved unless the surety thereon shall be qualified.

3:26-4. Form and Place of Deposit; Location of Real Estate; Record of Recognizances, Discharge and Forfeiture Thereof

(a) Deposit of Bail. A person admitted to bail shall, together with that person's sureties, sign and execute a recognizance before the person authorized to take bail or, if the defendant is in custody, the person in charge of the place of confinement. The recognizance shall contain the terms set forth in R. 1:13-3(b) and shall be conditioned upon the defendant's appearance at all stages of the proceedings until final determination of the matter, unless otherwise ordered by the court. One or more sureties may be required. Cash may be accepted, and in proper cases no security need be required. A corporate surety shall be one approved by the Commissioner of Insurance and shall execute the recognizance under its corporate seal, cause the same to be duly acknowledged and shall annex thereto proof of authority of the officers or agents executing the same and of corporate authority and qualification. Bail given in the Superior Court shall be deposited with the Finance Division Manager in the county in which the offense was committed, provided that upon order of the court bail shall be transferred from the county of deposit to the county in which defendant is to be tried. Real estate offered as bail for indictable and non-indictable offenses shall be approved by and deposited with the clerk of the county in which the offense occurred and not with the Municipal Court clerk. In any county, with the approval of the Assignment Judge, a program may be instituted for the deposit in court of cash in the amount of 10 percent of the amount of bail fixed.

(b) Limitation on Individual Surety. Unless the court for good cause otherwise permits, no surety, other than an approved corporate surety, shall enter into a recognizance or undertaking for bail if there remains undischarged any previous recognizance or bail undertaken by that surety.

(c) Real Estate in Other Counties. Real estate owned by a surety located in a county other than the one in which the bail is taken may be accepted, in which case the clerk of the court in which the bail is taken shall forthwith transmit a copy of the recognizance certified by that clerk to the clerk of the county in which the real estate is situated, who shall record it in the same manner as if the recognizance had been taken in that clerk's county.

(d) Record of Recognizance. The clerk of every court, except the municipal court, before which any recognizance shall be entered into shall record immediately into the Central Automated Bail System (CABS), the names of the persons entering into the recognizance, the amount thereof and the date of its acknowledgment. The Central Automated Bail System shall be kept in the clerk's office of the county of which such court shall be held, and be open for public inspection. In municipal court proceedings the record of the recognizance shall be entered in the docket book maintained by the clerk.

(e) Record of Discharge; Forfeiture. When any recognizance shall be discharged by court order upon proof of compliance with the conditions thereof or by reason of the judgment in any matter, the clerk of the court shall enter the word "discharged" and the date of discharge at the end of the record of such recognizance. When any recognizance is forfeited, the Finance Division Manager shall enter the word "forfeited", and the date of forfeiture at the end of the record of such recognizance, and shall give notice of such forfeiture to the county counsel. When real estate of the surety located in a county other than the one in which the bail was taken is affected, the clerk of the court in which such recognizance is given shall forthwith send notice of the discharge or forfeiture and the date thereof to the clerk of the county where such real estate is situated, who shall make the appropriate entry at the end of the record of such recognizance.

(f) Cash Deposit. When a person other than the defendant deposits cash in lieu of bond, the person making the deposit shall file an affidavit or certification concerning the lawful ownership thereof, and on discharge such cash may be returned to the owner named in the affidavit or certification.

(g) Ten Percent Cash Bail. Except in first or second degree cases as set forth in N.J.S.A. 2A:162-12 and unless the order setting bail specifies to the contrary, whenever bail is set pursuant to Rule 3:26-1, bail may be satisfied by the deposit in court of cash in the amount of ten-percent of the amount of bail fixed and defendant's execution of a recognizance for the remaining ninety percent. No surety shall be required unless the court fixing bail specifically so orders. When cash equal to ten-percent of the bail fixed is deposited pursuant to this Rule, if the cash is owned by someone other than the defendant, the owner shall charge no fee for the deposit other than lawful interest and shall submit an affidavit or certification with the deposit so stating and also listing the names of any other persons for whom the owner has deposited bail. The person making the deposit authorized by this subsection shall file an affidavit or certification concerning the lawful ownership thereof, and on discharge such cash may be returned to the owner named in the affidavit or certification.

3:26-3. Bail for Witness

a) Authority to Issue. A Superior Court judge may, on application, conduct proceedings under N.J.S.A. 2C:104-1 et seq. as to any person who can give testimony relevant to the prosecution or defense of a pending indictment, accusation, or complaint for a crime or a criminal investigation before a grand jury.

(b) Application. The application shall be captioned in Superior Court and entitled "In the Matter of (name of person alleged to be a material witness)". The application shall include a copy of the pending indictment, complaint, or accusation and an affidavit containing: (1) the name and address of the person alleged to be a material witness, (2) a summary of the facts believed to be known by the alleged material witness and the relevance to the criminal action or investigation, (3) the grounds for belief that the person has material and necessary information concerning the pending criminal action or investigation, and (4) the reasons why the alleged material witness is unlikely to respond to a subpoena. If the application requests an arrest warrant, the affidavit shall set forth why immediate arrest is necessary.

(c) Order to Appear. If there is probable cause to support issuance of a material-witness order against the person named in the application, the court may order the person to appear at a hearing to determine whether the person should be adjudged a material witness. The order and a copy of the application shall be served personally on the alleged material witness at least 48 hours before the hearing, unless the judge adjusts the time period for good cause, and shall advise the person of: (1) the time and place of the hearing, and (2) the right to be represented by an attorney and to have an attorney appointed if the person cannot afford one.

(d) Warrant for Immediate Detention. If there is clear and convincing evidence that the person will not be available as a witness unless immediately detained, the court may issue an order requiring that the person be brought before the court immediately. If the detention does not take place during regular court hours, the person shall be brought to the emergency-duty Superior Court judge. The judge shall inform the person: (1) the reason for detention, (2) the time and place of the hearing to determine whether the person is a material witness, and (3) that the person has a right to an attorney and to have an attorney appointed if the person cannot afford one. The judge shall set conditions for release, or, if there is clear and convincing evidence that the person will not be available as a witness unless detention is continued, the judge may order the person held until the material-witness hearing, which shall take place as soon as practicable but no later than 48 hours after detention.

(e) Detention Without Prior Court Authorization. Where a law enforcement officer hasdetained an alleged material witness without prior court authorization, the law enforcement officer shall immediately bring the person before a Superior Court judge. If the detention does not take place during regular court hours, the person shall be brought to the emergent duty Superior Court judge. The judge shall determine whether there is probable cause to believe that the person is a material witness of a crime and, if an indictment, accusation, or complaint for that crime has not issued or if a grand jury has not commenced a criminal investigation of that crime, the judge shall determine whether there is probable cause to believe that, within 48 hours of the detention, an indictment, accusation, or complaint will issue or a grand jury investigation will commence. The judge will then proceed as if an application for an order had been made under paragraph (b).

(f) Material Witness Hearing. At the material-witness hearing, the person shall have the rights: (1) to be represented by an attorney and to have an attorney appointed if the person cannot afford one, (2) to be heard and to present witnesses and evidence, and (3) unless otherwise sealed by the court for exceptional circumstances, to have all of the evidence in support of the application, and (4) to confront and cross-examine witnesses. If there is probable cause to believe that the person possesses information material to the prosecution of a defense of a pending indictment, accusation or complaint for a crime, or a criminal investigation before a grand jury and is unlikely to respond to subpoena, the judge shall: (1) set forth findings of facts on the record, and (2) set the conditions of release of the material witness.

(g) Conditions of Release or Detention. Conditions of release for a material-witness or for a person held on an application for a material-witness order shall be the least restrictive to effect the order of the court including but not limited to: (1) placing the witness in the custody of a designated person or organization agreeing to supervise the person; (2) restricting the travel, association, or place of abode of the person during the period of detention; (3) requiring the person to report; (4) setting bail, or (5) imposing other reasonable restrictions on the material witness. No person may be detained unless the judge finds, by clear and convincing evidence, that detention is the only method that will secure the appearance of the material witness. A person detained as a material witness or pending a material-witness hearing shall be lodged in appropriate quarters and shall not be held in a jail or prison.

(h) Deposition. The prosecutor, defendant, or material witness may apply to the Superior Court for an order directing that a deposition be taken to preserve the witness's testimony, for use at trial if the witness becomes unavailable, as provided by R. 3:13-2. After a deposition has been taken, the judge shall vacate the material-witness order and impose the least restrictive conditions to secure the appearance of the material witness.

(i) Reconsideration of Material Witness Order. On motion of the material witness, prosecutor, or defendant, a material witness order may be reconsidered at any time by the court that entered the order.

3:26-2. Authority to Set Bail

(a) Authority to Set Initial Bail. A Superior Court judge may set bail for a person charged with any offense. Bail for any offense except murder, kidnapping, manslaughter, aggravated manslaughter, aggravated sexual assault, sexual assault, aggravated criminal sexual contact, a person arrested in any extradition proceeding or a person arrested under N.J.S.A. 2C:29-9b for violating a restraining order may be set by any other judge, or in the absence of a judge, by a municipal court administrator or deputy court administrator.

(b) Initial Bail Set. Initial bail shall be set pursuant to R. 3:4-1(a) or (b) on indictable or non-indictable offenses.

(c) Review of Initial Set. Any person unable to post bail shall have his or her bail reviewed by a Superior Court judge no later than the next day which is neither a Saturday, Sunday nor a legal holiday.

Except in those indictable cases in which a Superior Court judge has set bail, a municipalcourt judge has the authority to make bail revisions up to and including the time of the defendant's first appearance before the court. A municipal court judge has the authority to make bail revisions on any non-indictable offense at any time during the course of the proceedings.

(d) Bail Reductions. A first motion for bail reduction shall be heard by the court no later than seven days after it is filed.

3:26-1. Right to Bail Before Conviction

(a) Persons Entitled; Standards for Fixing. All persons, except those charged with crimes punishable by death when the prosecutor presents proof that there is a likelihood of conviction and reasonable grounds to believe that the death penalty may be imposed, shall be bailable before conviction on such terms as, in the judgment of the court, will ensure their presence in court when required. The factors to be considered in setting bail are: (1) the seriousness of the crime charged against defendant, the apparent likelihood of conviction, and the extent of the punishment prescribed by the Legislature; (2) defendant's criminal record, if any, and previous record on bail, if any; (3) defendant's reputation, and mental condition; (4) the length of defendant's residence in the community; (5) defendant's family ties and relationships; (6) defendant's employment status, record of employment, and financial condition; (7) the identity of responsible members of the community who would vouch for defendant's reliability; (8) any other factors indicating defendant's mode of life, or ties to the community or bearing on the risk of failure to appear, and, particularly, the general policy against unnecessary sureties and detention. In its discretion the court may order the release of a person on that person's own recognizance. The court may also impose terms or conditions appropriate to the defendant's release including conditions necessary to protect persons in the community.

(b) Restrictions on Contact. If the court imposes conditions of bail that include restrictions on contact between the defendant and defendant’s minor child, (1) a copy of the order imposing the restrictions shall be transmitted to the Family Part, and (2) such restrictions shall not affect contact authorized by an order of the Family Part in a child abuse/neglect case entered after any restriction on contact was imposed as part of a bail order.

(c) Crimes with Bail Restrictions Defined in N.J.S.A. 2A:162-12. If a defendant is charged with a crime with bail restrictions as defined in N.J.S.A. 2A:162-12, no later than the time of posting bail or proffering the surety or bail bond, the defendant shall provide to the prosecutor, on the Bail Source Inquiry Questionnaire promulgated by the Attorney General, relevant information about the obligor, indemnifier or person posting cash bail, the security offered, and the source of any money or property used to post the cash bail or secure the surety or bail bond.

(d) On Failure to Indict. If a person committed for a crime punishable by death is not indicted within 3 months after commitment, a judge of the Superior Court, for good cause shown, may admit the person to bail.

(e) On Failure to Move Indictment. If an indictment or accusation is not moved for trial within 6 months after arraignment, a judge of the Superior Court, for cause shown, may discharge the defendant upon the defendant's own recognizance.

(f) Extradition Proceedings. Where a person has been arrested in any extradition proceeding, that person may be admitted to bail except where that person is charged with a crime punishable by death.

3:25A-2. Order of Disposition; Filing

Every disposition made pursuant to R. 3:25A-1 shall be set forth in an order or judgment which shall be filed in the county where such disposition is made and the county where the matter was pending. Unless the disposition is set aside, all subsequent proceedings shall be had in the county where such disposition was made, and copies of all orders and judgments entered in connection therewith shall be filed there.

3:25A-1. Application for Disposition

Notwithstanding the provisions of Rule 3:14, when a defendant has charges pending in more than one county at any stage prior to sentencing, either the defendant, or the prosecutor in any such county with the consent of the defendant, may move before the presiding judge of the criminal part in the county in which consolidation is sought, or before any judge designated to hear such motion, for consolidation for purposes of entering a plea or for sentencing. Written notice of such motion and an opportunity to be heard shall be given to the prosecutor in each county in which such a charge is pending. The motion shall be supported by certification that includes the information the court is required to consider under this Rule.
In deciding whether to order consolidation and, if so, the county to be the forum for the consolidated charges, the judge shall consider: (1) the nature, number, and comparative gravity of crimes committed in each of the respective counties; (2) the similarity or connection of the crimes committed including the time span within which the crimes were committed; (3) the county in which the last crime was committed; (4) the county in which the most serious crime was committed; (5) the defendant's sentencing status; (6) the rights of the victims and the impact on any victim's opportunity to be heard; and (7) any other relevant factor.
Each county prosecutor of the county in which a charge is pending shall be allowed to participate fully in the disposition of that charge after consolidation is ordered. If a plea agreement is entered that resolves less than all of the consolidated charges, the judge in the forum county shall order each unresolved charge to be returned immediately to the originating county. In the event that the consolidated charges have not been resolved within a reasonable period after consolidation, the judge in the forum county shall order each charge to be returned immediately to the originating county.

3:25-3. Dismissal for Delay

If there is an unreasonable delay in presenting the charge to a grand jury or in filing an accusation against a defendant who has been held to answer upon a complaint, the Assignment Judge, or the Assignment Judge's designee, may dismiss the matter sua sponte or on motion of the defendant. If there is unreasonable delay in the disposition of an indictment or accusation, the judge to whom the case has been assigned may dismiss the matter sua sponte or on motion of the defendant.

3:25-2. Order for Trial

A defendant who has remained in custody awaiting trial on an indictment, other than for a capital offense, for at least 90 consecutive days after the return of that indictment may move for a trial date. The motion shall be on notice to the prosecutor and shall be accompanied by a certification that the defense is ready to proceed to trial. The court shall, after affording the prosecutor an opportunity to be heard, fix a date for trial. In the event the prosecutor is unable to proceed on the trial date, the court shall take such action and enter such orders as the interest of justice requires, which may include pretrial release.