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Conditional Dismissal in New Jersey Municipal Courts: One Free Bite at The Apple For First Time Offenders

Conditional Dismissal is a much welcomed diversionary program which was signed into law by Governor Chris Christie (R) as P.L. 2013 c. 158 on September 6, 2013, and went into effective January 4, 2014. It allows those who qualify, charged with  disorderly persons or petty disorderly persons offenses in municipal court, an opportunity to keep a clean record provided they successfully complete a 1 year period of probation without any additional criminal convictions. This is a perfect compliment to the Conditional Discharge Program, under N.J.S.A. 2C:36A-1, which works similarly, but applies only to drug offenses, and  the Pre-Trial Intervention Program under N.J.S.A. 2C:43-12 which applies to indictable offenses. In a time when the Administrative Office of the Courts, and the New Jersey Attorney General strongly discourage municipal prosecutors from downgrading disorderly persons offenses to non-criminal municipal ordinances, this is a valuable option for prosecutors and defense attorneys resolving cases.

Over the course of my career as a New Jersey criminal defense attorney, I have seen trends in how laws are implemented, and I have seen these trends come and go. There was a time, years ago, when I could walk into municipal court with a client charged with a disorderly persons offense, and if there were no aggravating facts, I stood a better than average chance of getting the offense downgraded to a non-criminal ordinance just for the sake of resolving the case quickly. If my client also had no prior record, it was practically a guarantee I would be able to get the charge dismissed or downgraded. Several years ago, that changed. Presently, even representing a defendant with no prior record, unless I can establish a strong factual or legal argument which genuinely calls into question whether a prosecutor can sustain a conviction, the chances of resolving a criminal matter in municipal court with a downgrade are extremely slim. As a result, prior to the adoption of the Conditional Dismissal, defendants and their attorneys were left between a rock and a hard place. Even prosecutors didn’t like the idea of convicting a first time offender who they felt maybe deserved a break. Attorneys often commiserated about the inequity of drug offenders getting a break with Conditional Discharge, and those charged with even more serious indictable offenses finding a path to a clean record with PTI, but those charged with minor disorderly persons or petty disorderly persons offenses having to take it on the chin. But what to do? There were few options, and I  had to either roll the dice in trial for cases that had less than a strong defense and hope for the best, or become very creative. One time, I actually argued that my client’s charge was more serious than originally contemplated, and asked the municipal prosecutor to send the case up to the county prosecutor’s office for review. It was my hope that the county prosecutor would agree that it was actually an indictable offense, which would allow my client to then qualify for Pre-Trial Intervention. A risky strategy to be sure, but one that actually worked. Going through contortions such as those was simply not a viable solution to handle an entire case load, and not even an option for most cases. Now, thanks to some common sense and a practical approach to what was universally perceived as a problem, we have a solution, making such extraordinary efforts as described above unnecessary.

taking-a-bite-641572-mPTI and Conditional Dismissal are similar in their main purpose, but it is important to understand all aspects of the program prior to seeking admission. Aside from the 75$ application fee, and finger printing pursuant to N.J.S.A 2C:53-1-15, the program has certain requirements for qualification. Both PTI and Conditional Dismissal require that an applicant have a totally clean record, and have no convictions for any criminal offense. Similar to PTI and Conditional Discharge, if a person has ever resolved a criminal case by entry into one of these diversionary programs, they will be forever barred from entering into either of the other two. In New Jersey, a defendant gets one free bite at the apple, and once a person has resolved a case by entry into the program, they may never enroll again in the future for another offense. DWI and DUI, domestic violence offenses, gang related offenses, ongoing criminal activity, offenses against disabled persons or the elderly, and breaches of trust by public office holders or employees, are barred from entry into the program. If a defendant meets the statutory requirements for entry into the program, a judge will determine if entry is also appropriate under the circumstances as they pertain to the facts of the case. A judge must consider the nature of the offense, the defendant’s history and background, and the interest of the victim and/or the public at large. A court may also take into considerations any recommendations made by the prosecutor, however, may admit or decline admission despite that recommendation. If a judge permits entry into the program over the objections of the prosecutor, the judge’s order will still be considered final, but entry of the order will be stayed 10 days to permit the prosecutor to file an appeal of with the Superior Court. If a defendant is permitted entry into the program, they may be assessed fines which may not exceed the amount the underlying offense would impose. A judge may also impose other conditions, at the court’s discretion, which may be suitable for a  particular case (such as restitution, anger management, or even community service). Being convicted of an offense while enrolled in Conditional Dismissal will result in termination from the program.

Judge in his courtroomIf a person has successfully completed all the requirements and conditions imposed by the judge, has paid all fines and fees, and has remained offense free for the 1 year period of probation supervision, the charge will be dismissed as a matter of course without any further efforts from the defendant or their attorney. A person successfully having their criminal charge dismissed pursuant to successful completion, may have the arrest, charge, and dismissal expunged from their record after 6 months elapses from the date of dismissal, so that if anyone runs a criminal background check nothing will appear. They will be able to truthfully answer on job, school, or professional license applications that they have never been convicted of a crime. This may seem like a lot to go through, but the purpose of Conditional Dismissal is to prevent a good person from ruining their future due to a one time lapse in judgment, and that alone is worth the effort, along with any perceived inconvenience. As time passes, this program will prove to not only be a huge success, but one which was required by the interest of justice and fairness.

Reference:

Administrative Office of the Courts: Advisory, September 9, 2013