New law finally establishes a Conditional
Dismissal Program in Municipal Court. Ken Vercammen
testified in favor of the passage before the Assembly Judiciary Committee.
Governor
Chris Christie on September 9 signed into law legislation co-sponsored by
Senator Christopher “Kip” Bateman (R-Hunterdon, Mercer, Middlesex and Somerset)
to provide a conditional assistance program in Municipal Court for certain
first-time offenders. The law takes affect 120 days after signing [approx
December 9]
“This
initiative will give a broader range of first-time offenders who have committed
a minor offense an opportunity to turn their lives around,” Bateman said. “The
program will help foster participants’ rehabilitation and future success by
giving them appropriate penalties without having the offense be a part of their
permanent criminal record.”
Under
prior law, the only offenses eligible for a conditional discharge are certain
drug-related offenses. Bateman’s S-2588 allows discharge for many non-drug
offenses, such as disorderly person’s offenses, which have not been able to
participate in similar programs before.
“First-time
offenders who are screened to meet the eligibility requirements will be able to
use the program to avoid having a record that cannot be expunged until years
after the sentence is served,” Bateman added. “The legislation will also help
courts efficiently adjudicate cases without costly logjams.”
Contact
Kenneth Vercammen’s Law Office if charged with a criminal offense 732-572-0500
Under
this law, conditional dismissal is not available to any person who has
previously participated in a conditional discharge, conditional dismissal, or
supervisory treatment program such as PTI. In addition, a person is not
eligible for conditional dismissal if the offense for which the person is
charged involved:
•
organized criminal or gang activity;
•
a continuing criminal business or enterprise;
•
a breach of the public trust by a public officer or
employee;
•
domestic violence;
•
an offense against an elderly, disabled or minor person;
•
an offense involving driving or operating a motor vehicle
while under the influence of alcohol, intoxicating liquor, narcotic,
hallucinogenic or habit-producing drug;
•
animal cruelty;
•
or any disorderly persons offense or petty disorderly
persons offense under chapter 35 or 36 of the Criminal Code.
After taking
into consideration the eligibility criteria, the defendant’s criminal history
and the prosecutor’s recommendation, the court may, approve the defendant’s
participation in the conditional dismissal program and place the defendant
under a probation monitoring status for a period of one year.
This law establishes a
conditional dismissal program in municipal court similar to the existing
supervisory treatment programs for pre-trial intervention and conditional
discharge.
Previously, the supervisory
treatment programs for pre-trial intervention and conditional discharge allow
the court to suspend proceedings against eligible defendants while the
defendants participate in supervisory treatment. Persons who are charged
with indictable offenses (crimes of the first, second, third, or fourth degree)
may be eligible for pretrial intervention (“PTI”) pursuant to N.J.S.2C:43-12 et
seq. Persons charged with certain disorderly persons or petty disorderly
persons drug offenses may be eligible for conditional discharge pursuant to
N.J.S.2C:36A-1. If the defendant violates a term or condition of
supervisory treatment, the court may enter a judgment of conviction or, where
the defendant did not previously plead guilty and was not previously found
guilty, resume the criminal proceedings. If the defendant successfully
completes the program, the criminal charges are dismissed.
CONDITIONAL DISMISSAL
PROGRAM. This law establishes a similar diversion program in municipal court to
be known as the conditional dismissal program. Under the provisions of
the law, a defendant who is charged with a petty disorderly persons offense or
disorderly persons offense may apply to enter into the conditional dismissal
program, provided the defendant has not been previously convicted of any
offense or crime under any law of the United States, this State or any other
state. A defendant may make an application to the conditional dismissal
program after a plea of guilty or a finding of guilt, but prior to the entry of
judgment of conviction.
FINGERPRINTING
REQUIREMENT. To allow sufficient time for verification of the defendant’s
criminal history by the prosecutor and as a condition of the application, the
defendant will be required to submit to the fingerprint identification
procedures as provided in R.S.53:1-15 before making an application to the
court.
CONDITIONAL
DISMISSAL PROGRAM ELIGIBILITY. Conditional dismissal will not be available to
any person who has previously participated in conditional discharge,
conditional dismissal, or PTI. In addition, conditional dismissal will
not be available if the offense for which the person is charged involved:
organized criminal or gang activity; a continuing criminal business or
enterprise; a breach of the public trust by a public officer or employee;
domestic violence; an offense against an elderly, disabled or minor person; an
offense involving driving or operating a motor vehicle while under the
influence of alcohol, intoxicating liquor, narcotic, hallucinogenic or
habit-producing drug; animal cruelty laws; or any disorderly persons offense or
petty disorderly persons offense under chapter 35 or 36 of the Criminal Code
(drugs and drug paraphernalia). However, a person who is charged with a
disorderly persons or petty disorderly persons offense involving drugs or drug
paraphernalia may apply for a conditional discharge in accordance with
N.J.S.2C:36A-1.
In addition to these
eligibility criteria, the court considering the application must also consider
the following factors: the nature and circumstances of the offense; the facts
surrounding the commission of the offense; the motivation, age, character and
attitude of the defendant; the desire of the complainant or victim to forego
prosecution; the needs and interests of the victim and the community; the
extent to which the defendant’s offense constitutes part of a continuing
pattern of anti-social behavior; whether the offense is of an assaultive or
violent nature, either in the act itself or in the possible injurious
consequences of such behavior; whether the applicant's participation will
adversely affect the prosecution of codefendants; whether diversion of the
defendant from prosecution is consistent with the public interest; and any
other factors deemed relevant by the court.
If the court approves a
defendant’s participation in the conditional dismissal program over the
municipal prosecutor’s objection, that order will, upon the request of the
prosecutor, be stayed for a period of 10 days in order to permit the prosecutor
to appeal the order to the Superior Court.
PROGRAM REQUIREMENTS.
After taking into consideration the eligibility criteria, the defendant’s
criminal history and the prosecutor’s recommendation, the court may approve the
defendant’s participation in the conditional dismissal program and place the defendant under a probation monitoring
status for a period of one year. The court may also impose financial
obligations and other terms and conditions in accordance with the law.
The law permits the defendant to apply to the court for an extension of the
term of conditional dismissal to allow sufficient time to pay financial
obligations imposed by the court. In addition, a judge could extend the
term for good cause.
If a defendant who is
participating in conditional dismissal is convicted of any 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 prior finding of
guilt.
If, at the end of the term,
the defendant has not been convicted of any subsequent offense or crime under
any law of the United States, 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.
The law provides that a
conditional dismissal of a petty disorderly persons or disorderly persons
offense granted pursuant to the program will not be deemed a conviction for
purposes of disqualifications or disabilities, but shall be reported to the
State Bureau of Identification criminal history record information files for
purposes of determining future eligibility or exclusion from court diversion
programs. A conditional dismissal granted will not be deemed a conviction
for the purposes of determining whether a second or subsequent offense has
occurred under any law of this State.
LIMITATION. A
conditional dismissal can only be granted once with respect to any defendant.
CONDITIONAL DISMISSAL
APPLICATION FEE AND ASSESSMENT. A person applying for admission to the
conditional dismissal program will pay to the court an application fee of
$75. The fee would be deposited in the newly created “Municipal Court
Diversion Fund” established under the law. Monies in this new fund will be used
to offset the cost of intake and monitoring services related to the conditional
dismissal program. If admitted into the program, the defendant would also
be required to pay any restitution, costs, and other mandatory assessments that
would have been imposed by law for a conviction of the offense charged.
A municipal court judge may
impose an assessment, based on the nature of the offense and the character of
the defendant that shall not exceed the amount of a fine that would have been
imposed for conviction of the offense charged. Such assessment would be
distributed in the same manner as a fine for the offense.
A defendant would be advised
of these financial conditions prior to seeking entry into the program.
The law allows the defendant
to apply for a waiver of the fee by reason of poverty. The court may also
permit the defendant to pay the conditional dismissal fee and other assessments
in installments or order other alternatives pursuant to section 1 of P.L.2009,
c.317 (C.2B:12-23.1). Under the provisions of that enactment, the court
has several options available if it finds that a person does not have the
ability to pay a penalty in full or has failed to pay a previously imposed
penalty. The court may reduce, suspend, or modify the installment plan;
order that credit be given against the amount owed for each day of confinement
if the court finds that the person has served jail time for the default; revoke
any unpaid portion of the penalty; order the person to perform community
service in lieu of payment of the penalty; or impose any other alternative
permitted by law.
MUNICIPAL COURT DIVERSION
FUND. The law establishes a new dedicated, non-lapsing fund to be
known as the "Municipal Court Diversion Fund," which will be
administered by the Administrative Office of the Courts. The fund will be
the depository of the $75 application fee for the conditional dismissal
program. Monies in the fund will be used to offset the cost of intake and
monitoring services for defendants under the conditional dismissal program.
CONDITIONAL DISCHARGE.
Currently, the conditional discharge statute, N.J.S.2C:36A-1, provides that the
$75 fee, which is charged for this program, is used to defray the costs of
juror compensation. However, this provision is outdated since these monies are
no longer used to defray the costs of juror compensation, but instead are paid
to the State Treasurer to for deposit in the General Fund. This law updates
this section of law accordingly.
Under the current provisions
of the conditional discharge statute, a person is not eligible for conditional
discharge if that person has committed a disorderly persons or petty disorderly
persons drug offense under any law of the United States, this State or any
other state. The law amends section a. of N.J.S.2C:36A-1 to also provide that a
person who has participated in any supervisory treatment program or the
conditional dismissal program established under the law will not be eligible
for participation in the conditional discharge program.
SUPERVISORY TREATMENT
(PTI). Similar to the conditional discharge statute, the PTI statute,
N.J.S.2C:43-12, provides that the $75 fee charged for the program is used to
defray the costs of juror compensation. Since these monies are no longer used
to defray the costs of juror compensation, the law updates this section of law
accordingly.
Under the current provisions
of N.J.S.2C:43-12, PTI may only occur once and any person who has previously
received PTI is not eligible for subsequent PTI. This law expands this
provision by providing that a person who has participated in either conditional
dismissal or conditional discharge will not be eligible for PTI.
The law amends the
conditional discharge and PTI statutes to provide that the court may allow the
payment of the fees and other financial obligations in installments.
EXPUNGEMENT. The law amends
N.J.S.2C:52-6 concerning expungement of arrests not resulting in conviction to
allow for expungement of charges dismissed pursuant to conditional discharge or
conditional dismissal six months after the entry of the order of dismissal.
Currently, this section allows for expungement for a person who has had charges
dismissed as a result of participation in a supervisory treatment program.
