On June 27, 2013, Bill 3598 passed both houses of the New Jersey Legislature and if all goes well, will soon become law. The Bill essentially implements a Pre-Trial Intervention program in our state’s municipal court system, which up until now, has not had a formal type of diversionary program except the Conditional Discharge under N.J.S. 2C:36A-1, which applies to disorderly persons drug offenses. There is a PTI program in New Jersey, but it is only available in our Superior Court system, which has jurisdiction over indictable crimes (in other words, 4th degree crimes and higher). The benefit of being admitted to the PTI program is that upon successfully completion of the program, usually a period of probation with other specified conditions, the charge(s) against the defendant is dismissed. Of course, admission into the program is not automatic or guaranteed. It is reserved for those who meet the specific criteria, which generally pertains those who have been charged with a third or fourth degree crimes who have no prior record, have never been admitted to such a program before, and who can demonstrate that they are capable of rehabilitation. Ironically, a person who is fortunate enough to be admitted to PTI in Superior Court is arguably sometimes better off than a person who pleads guilty to a criminal offense in municipal court, a venue where less serious charges are heard, because the charges are technically dismissed whereas the person in municipal court will still walk away with a conviction.
Under the new bill, defendants in municipal courts will now have equal access to such a diversionary program called Conditional Dismissal. Under the proposed provisions, any defendant who has not been previously convicted of any petty disorderly persons, disorderly persons, or crime, who has never participated in a Conditional Discharge, supervisory treatment under N.J.S. 2C:43-12 (PTI), or a Conditional Dismissal under this program, and who is charged with committing a petty disorderly persons offense or disorderly persons offense (with certain exceptions) may apply for admission into Conditional Dismissal program. In deciding whether to admit the defendant, the court shall consider the following:
1) The nature and circumstances of the offense;
2) The facts surrounding the commission of the offense;
3) The motivation, age, character, and attitude of the defendant;
4) The desire of the complainant or victim to forego prosecution;
5) The needs and interests of the victim and the community;
6) The extent to which the defendant’s offense constitutes a part of a continuing pattern of anti-social behavior;
7) Whether the offense is of an assaultive or violent nature, whether in the act itself or in the possible injurious consequences of such behavior;
8) Whether the applicant’s participation will adversely affect the prosecution of codefendants;
9) Whether diversion of the defendant from prosecution is consistent with the public interest; and
10) Any other factors deemed relevant by the court.
Like the PTI program in Superior Court, the charge or charges against the defendant are dismissed upon successful completion of the program. There are some important qualifications, however: allegations of certain crimes or offenses will disqualify the applicant from consideration. Some notable offenses include allegations of domestic violence, Driving while intoxicated, and disorderly persons and petty disorderly persons drug offenses under Section 35 or 36 of the New Jersey criminal code. Something also significant worth noting-especially for those who are not United States Citizens-is that this program, unlike the PTI program in Superior Court, starts after a plea or finding of guilt but before entry of the judgment. (In Superior Court, a guilty plea or finding of guilt is not a precondition for proceedings to be suspended.) Why is this important? Because a guilty plea or admission of guilt under circumstances may count as a “conviction” for immigration purposes even if the criminal charge is subsequently dismissed! So while this program is, generally speaking, a wonderful alternative to those facing criminal charges for the first time in municipal court, it is not necessarily a panacea for immigrants and out-of-status/undocumented aliens. It is easy to envision a scenario where the prosecutor or even the defendant’s own attorney may encourage the defendant to enter a guilty plea in order to obtain the prosecutor’s consent or non-opposition to the application for Conditional Dismissal. That defendant-if he/she is not a citizen-should be cognizant that guilty pleas still count and may come back with devastating consequences in the future. The easiest and most convenient way is not always the best.