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The Two Faces of Conditional Discharge: NY vs. NJ

| Nov 17, 2014 | Immigration Consequences of Crimes


The term “conditional discharge” is becoming an increasingly confusing term because conditional discharges exists in different states but they don’t have the same meaning. A prime example is the difference between New Jersey and New York’s versions. In New Jersey, a conditional discharge is an alternative disposition afforded to defendants charged with certain drug offenses. The statute is NJSA 2C:36A-1. It is available only in the municipal courts and generally refers to a suspension in the proceedings whereby the case is taken off the prosecution track. Instead, the defendant undergoes a period of probation that, if successfully completed, will result in the charges being dismissed. Conditional discharges are only available in cases charging a disorderly persons or petty disorderly persons violation of chapter 35 or 36, which relate to drug offenses in New Jersey. We talked about the potential benefits of a conditional discharge in NJ in a previous post.

In contrast, a conditional discharge in New York occurs after the defendant has already pleaded guilty to an offense, whether it be a violation, felony, or misdemeanor. The criteria are outlined in New York Penal Law Section 65.05. The discharge refers the release of the defendant without imprisonment or probation supervision (but subject to any other conditions that the court may impose). The key difference appears to be that in New Jersey, defendants are ordinarily admitted to conditional discharges without entering a plea of guilty whereas in New York, conditional discharge is a sentence that is normally handed out after a guilty plea.

Immigration Consequences

In terms of immigration consequences, this can be significant because there is ordinarily no plea or admission of guilt under New Jersey’s scheme whereas in New York, a person who has been sentenced to a conditional discharge has already pled or been found guilty. Being found guilty or admitting to guilt may constitute a “conviction” under the immigration laws, even if a person does not serve one day in jail, or even if the charges are subsequently dismissed.

The Immigration and Nationality Act (INA) defines “conviction” as follows:

(A) The term ‘conviction’ means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where-

(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and

(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.

INA §101(a)(48). See also Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988).

Given the potential ramifications of a guilty plea, criminal defendants who are not US Citizens need to be aware of these issues, even if their defense attorneys are not. Moreover, defendants need to be cognizant that different alternative sentencing schemes or programs mean different things in different states.

We hope that you have enjoyed this article and learned at least one new thing or tip that you may not have known. To keep informed about the latest developments in immigration law, please subscribe to our blog feed by clicking on the “Subscribe To This Blog’s Feed” button on the left. It is important to understand that the above is only general information and not legal advice. It does not create an attorney-client relationship nor should it be relied upon as legal advice. The law is extremely fact and circumstance sensitive. For an individual legal analysis of your specific legal case, please complete the “Case Evaluation” box to the right of the screen to get in touch with one of our attorneys.

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