Rule 3:28-6. Appeal of Decision by Criminal Division Manager or Prosecutor

Rule 3:28-6. Appeal of Decision by Criminal Division Manager or Prosecutor

(a) Time to File. A defendant challenging the decision of the criminal division
manager not to recommend enrollment, or of a prosecutor refusing to consent to
consideration of the defendant’s application where required pursuant to R. 3:28-1(d), or
of a prosecutor’s refusing to consent to the defendant’s enrollment into the pretrial
intervention program, shall file a motion with the Presiding Judge of the Criminal
Division, or the judge to whom the case has been assigned, within ten days after receipt
of the rejection and, if prepared, of the Criminal Division Manager’s report. The motion
shall be made returnable at such time as the judge determines will promote an
expeditious disposition of the case.

(b) Standards.

(1) A defendant challenging a prosecutor’s decision to refuse to consent
to consideration of an application must establish that the prosecutor’s decision was a
patent and gross abuse of discretion. When considering an appeal, the court shall
make an individualized determination, on a case-by-case basis, of whether a
prosecutor’s decision to refuse to consent to consideration of an application for pretrial
intervention was a patent and gross abuse of discretion.

(2) A defendant challenging the criminal division manager’s
recommendation against enrollment into the pretrial intervention program must establish
that the decision was arbitrary and capricious.

(3) A defendant challenging the prosecutor’s recommendation against
enrollment into the pretrial intervention program must establish that the decision was a
patent and gross abuse of discretion.

(c) Appellate Review. If the rejection is upheld by the judge, there shall be no
pretrial review by an appellate court of a decision of the prosecutor to refuse to consent
to consideration of the application, or of a decision of the criminal division manager, or
of the prosecutor to refuse to enroll a defendant into the pretrial intervention program.
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.

(d) Appeal After Judgment of Conviction. Denial of an application or
enrollment 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.

Note: Adopted September 15, 2017 to be effective July 1, 2018.