There has been a fairly significant new development in the law with respect to the New Jersey Municipal Courts which will change how some cases are handled especially for first time offenders. A Conditional Dismissal Program has recently been enacted. The Conditional Dismissal Program is a supervisory treatment program similar to the Conditional Discharge ("C.D.") program and the Pre-Trial Intervention ("P.T.I.") program. All of these programs are diversionary in nature, meaning that the regular process of prosecution is diverted into a monitoring and/or treatment program for a set period of time. Typically, an individual in the C.D. program must avoid any new drug convictions and also be able to pass random drug screens. P.T.I. terms and conditions can vary, but generally are very similar to probation requirements, and require no new convictions and may even include restitution to victim(s). If the case involved drugs, then P.T.I. also would require random drug testing. If a defendant is successful in completing either the C.D. or P.T.I. program, then the charges are dismissed automatically. These types of programs are important and beneficial because they can keep an individual from accumulating a conviction on their record in cases that may be legally indefensible.
The Conditional Dismissal program appears to have been designed to fill in the gaps created between the C.D. Program, which applies to municipal court drug violations, and the P.T.I. Program which applies to certain qualifying indictable criminal charges in superior court. As a municipal court practitioner, I can say that I have always had some concern regarding the fact that there was no diversionary treatment program for first time offenders in municipal court that were facing municipal ordinance, disorderly or petty-disorderly persons offenses. For instance, if you were facing a theft or shoplifting type charge in municipal court, there would be no diversionary program that if completed would result in a dismissal. If you were in superior court facing the same type of charge, but charged as an indictable crime, you would be entitled to a diversionary program, specifically, the P.T.I. program which if completed would result in dismissal of the charge. The Conditional Dismissal changes what I would call a disparity in treatment of defendants between municipal court and superior court with respect to certain offenses.
Presently, defendants in municipal court have the right to apply for the C.D. program if they face a chapter 35 or 36 of Title 2C drug offense if they meet all of the qualifications. In order to be qualified for the C.D. program, you must have never participated in a diversionary treatment program in New Jersey or any similar programs in other states. Also, you cannot have any previous chapter 35 or 36 of Title 2C convictions on your record. The C.D. program only covers drug-related offenses however. The Conditional Dismissal Program works to expand the realm of charges that can be dealt with through a diversionary treatment in municipal court. Now you can also enter into a diversionary program for other qualifying municipal ordinance, disorderly or petty-disorderly persons offenses.
Under the Conditional Dismissal Program, in order to be eligible and apply, you must not have been previously convicted of any indictable crime ("felony"), disorderly persons offense or petty disorderly persons offense under any State or Federal law. Further, you must not have previously participated in the C.D. program, the P.T.I. program or the Conditional Dismissal program itself. Application for the program can be made only after a plea of guilty or a finding of guilty, but prior to the entry of a judgment of conviction, and with the appropriate notice to the prosecutor. As a conditional of application into the program, the defendant is also required to submit to fingerprinting identification procedures before making application, so that the prosecutor can obtain the defendant's criminal history information and verify eligibility.
It is important to note that not all disorderly, petty disorderly and municipal ordinance violations will be eligible for the Conditional Dismissal program. A defendant shall not be eligible for participation in the program if the offense he or she is charged with involved: (a) organized criminal or gang activity; (b) a continuing criminal business or enterprise; (c) a breach of the public trust by a public officer or employee; (d) domestic violence as defined by subsection a. of section 3 of P.L.1991, c.261 (C.2C:25-19); (e) an offense against an elderly, disabled or minor person; (f) an offense involving driving or operating a motor vehicle while under the influence of alcohol, intoxicating liquor, narcotic, hallucinogenic or habit-producing drug; (g) a violation of animal cruelty laws; or, (h) any disorderly persons offense or petty disorderly persons offense under chapter 35 or 36 of Title 2C.
In addition to the eligibility requirements of (a) through (h) above, the court will also consider the following factors when determining whether a defendant should be permitted to participate in the Conditional Dismissal program: (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 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 co-defendants; (9) Whether diversion of the defendant from prosecution is consistent with the public interest; and, (10) Any other factors deemed relevant by the court.
If eligibility is confirmed, and the application into the program is accepted, then the court may approve a defendant's participation in the Conditional Dismissal program. The program involves probation monitoring status for the period of one (1) year. The court may also impose financial obligations and other terms and conditions consistent with the program. The program period can also be extended if necessary for financial obligations to be met. If a defendant who is participating in the program is convicted of a petty disorderly persons offense, disorderly persons offense or crime under any law of the United States, this State or any other state, or otherwise fails to comply with the terms and conditions imposed by the court, the court can enter a judgment of conviction and impose a fine, penalty, or other assessment in accordance with the defendant's prior plea of guilty or finding of guilt. If, at the end of the term of the program, the defendant has not been convicted of any subsequent offense in this State or any other state, and has complied with any other terms and conditions imposed by the court, the court may terminate the probation monitoring and dismiss the proceedings against the defendant.
Certainly, this information is just basic and does not address every aspect of the new Conditional Dismissal program in New Jersey Municipal Courts. In fact, the program is so new, it is likely that there will be some significant variations with respect how it is implemented and utilized in the various municipal courts throughout the State. It is also important to note that the Conditional Dismissal program may not be the best resolution of your matter even if you meet all of the eligibility requirements. There are still numerous other effective ways to successfully resolve cases without use of this program. Also, it is important not to use up an opportunity for diversionary treatment unless it is absolutely necessary. As always, the attorneys at the Nugent Law Offices are always happy to discuss any aspect of a criminal case in either Municipal or Superior Court. Please feel free to contact us by telephone at any time.
- Justin Brake, Esquire / July & August 2013