CONDITIONAL
DISCHARGE TO DISMISS MUNICIPAL COURT DRUG CHARGES
By Kenneth Vercammen, Trial Attorney
The defense of a person charged with possession of
drugs or drug paraphernalia is not impossible. Attorneys should not merely
suggest that their client plead guilty to save a few dollars. There are a
number of viable defenses and arguments which can be pursued to achieve a
successful result. Advocacy, commitment, and persistence are essential to
defending a client accused of involvement with controlled dangerous substances
(CDS).
The Municipal
Courts in New Jersey have jurisdiction to hear the following drug‑related
offenses:
NJSA 2C:5‑10(a)(4),
possession of 50g or less of marijuana or 5g or less of hashish; NJSA 2C:35‑10(b),
using or being under the influence of CDS; NJSA 2C:35‑10(c), failure to deliver
CDS to police; NJSA 2C:36‑2, possession of drug paraphernalia.
N.J.S.A. 2C:36A‑1
provides that a person not previously convicted of a drug offense either under
Title 2C or Title 24 and who has not previously been granted "supervisory
treatment" under 24:21‑27 (Old Drug Law CD), 2C:43‑12 (PTI) or 2C:36A‑l
(conditional discharge) may apply for a conditional discharge.
The defense
attorney can make a Motion, upon notice to the prosecutor and subject to 2C:36A‑l(c)
for first offenders to suspend further proceedings and place the defendant on
supervisory treatment (i.e., probation, supervised or unsupervised attendance
at Narcotics Anonymous, etc.). This is Motion For Conditional Discharge. Since the granting of a Conditional Discharge
is optional with the court, defense counsel should be prepared to prove,
through letters, documents, or even witnesses, that the defendant's continued
presence in the community or in a civil treatment program, will not pose a
danger to the community.
Defense counsel should be prepared to convince the
court that the terms and conditions of supervisory treatment will be adequate
to protect the public and will benefit the defendant by serving to correct any
dependence on or use of controlled substances. For applicable caselaw on
Conditional Discharges, see State v Sanders N.J. Super 515 (App. Div.
1979), State v Banks 157 N.J. Super. 442 (Law Div. 1978), State v
Grochulski 133 NJ Super 586 (Law Div. 1975), State v Teitelbaum. 160
NJ Super 450 (Law Div. 1978), State v Bush 134 NJ Super 346 (Cty Ct
1975), State v DiLuzio 130 NJ Super 220 (Law Div. 1974).
The defendant must pay a $45.00 application fee,
plus the mandatory $500.00 DEDR penalty. The court further has the option to
suspend a defendant's driver's license for between six months and two years.
The conditional discharge period is also between one
year and two years. If the defendant is convicted of a drug offense during the
CD period or violates the conditions set by the court, the prosecution resumes.
The defendant may even apply for a conditional discharge after he/she is found
guilty, but before sentence is imposed. If the CD is granted at this point in
the proceeding, the 6 to 24 month license suspension is mandatory.
CONCLUSION
Narcotics and
Drug related offenses carry substantial penalties which will effect your client
for the rest of his life. The space limits of this article do not allow
detailed explanation of the extensive caselaw on Narcotics. Drug law and other defenses are explained in greater details in other
articles on www.njlaws.com.
Good luck!
