1

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 seconddegree 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 
2

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.
1

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 
2

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 postindictment, 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 
3

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.
4

unconscious, into the Shan residence. Higgins sustained 

injuries to his head, face, and mouth.

An Ocean County Grand Jury indicted defendant and codefendant 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 seconddegree 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.
5

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].
6

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. 
7

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 
8

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, codefendant 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 
9

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 timebarred 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.
10

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. PadillaBustamante, 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 
11

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 
12

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 
13

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. 
14

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 
15

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 
16

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 twentyfive 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)
17

(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 
18

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. 
19

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.
1

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