Bill Text: NJ A1978 | 2022-2023 | Regular Session | Introduced
Bill Title: Provides that defendant who participated in diversion program for certain marijuana offenses on prior occasion may again participate under certain circumstances.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Introduced - Dead) 2022-01-11 - Introduced, Referred to Assembly Judiciary Committee [A1978 Detail]
Download: New_Jersey-2022-A1978-Introduced.html
STATE OF NEW JERSEY
220th LEGISLATURE
PRE-FILED FOR INTRODUCTION IN THE 2022 SESSION
Sponsored by:
Assemblyman RAJ MUKHERJI
District 33 (Hudson)
Assemblywoman ANGELA V. MCKNIGHT
District 31 (Hudson)
Assemblywoman ANNETTE QUIJANO
District 20 (Union)
SYNOPSIS
Provides that defendant who participated in diversion program for certain marijuana offenses on prior occasion may again participate under certain circumstances.
CURRENT VERSION OF TEXT
Introduced Pending Technical Review by Legislative Counsel.
An Act concerning supervisory treatment programs and amending various parts of the statutory law.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. N.J.S.2C:36A-1 is amended to read as follows:
2C:36A-1. Conditional discharge for certain first offenses.
a. Whenever any person who has not previously been convicted of any offense under section 20 of P.L.1970, c.226 (C.24:21-20), or a disorderly persons or petty disorderly persons offense defined in chapter 35 or 36 of this title or, subsequent to the effective date of this title, under any law of the United States, this State or any other state relating to marijuana, or stimulant, depressant, or hallucinogenic drugs, and who has not, except as provided in subsection e. of this section, previously participated in a program of supervisory treatment pursuant to N.J.S.2C:43-12 or conditional dismissal pursuant to P.L.2013, c.158 (C.2C:43-13.1 et al.), or a Veterans Diversion Program pursuant to P.L.2017, c.42 (C.2C:43-23 et al.), is charged with or convicted of any disorderly persons offense or petty disorderly persons offense under chapter 35 or 36 of this title, the court upon notice to the prosecutor and subject to subsection c. of this section, may on motion of the defendant or the court:
(1) Suspend further proceedings and with the consent of the person after reference to the State Bureau of Identification criminal history record information files, place him under supervisory treatment upon such reasonable terms and conditions as it may require; or
(2) After a plea of guilty or finding of guilty, and without entering a judgment of conviction, and with the consent of the person after proper reference to the State Bureau of Identification criminal history record information files, place him on supervisory treatment upon reasonable terms and conditions as it may require, or as otherwise provided by law.
b. In no event shall the court require as a term or condition of supervisory treatment under this section, referral to any residential treatment facility for a period exceeding the maximum period of confinement prescribed by law for the offense for which the individual has been charged or convicted, nor shall any term of supervisory treatment imposed under this subsection exceed a period of three years.
Upon violation of a term or condition of supervisory treatment the court may enter a judgment of conviction and proceed as otherwise provided, or where there has been no plea of guilty or finding of guilty, resume proceedings. Upon fulfillment of the terms and conditions of supervisory treatment the court shall terminate the supervisory treatment and dismiss the proceedings against him. Termination of supervisory treatment and dismissal under this section shall be without court adjudication of guilt and shall not be deemed a conviction for purposes of disqualifications or disabilities, if any, imposed by law upon conviction of a crime or disorderly persons offense but shall be reported by the clerk of the court to the State Bureau of Identification criminal history record information files. Termination of supervisory treatment and dismissal under this section may occur only once with respect to any person. Imposition of supervisory treatment under this section shall not be deemed a conviction for the purposes of determining whether a second or subsequent offense has occurred under section 29 of P.L.1970, c.226 (C.24:21-29), chapter 35 or 36 of this title or any law of this State.
c. Proceedings under this section shall not be available to any defendant unless the court in its discretion concludes that:
(1) The defendant's continued presence in the community, or in a civil treatment center or program, will not pose a danger to the community; or
(2) 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 which he may manifest; and
(3) The person has not previously received supervisory treatment under section 27 of P.L.1970, c.226 (C.24:21-27), N.J.S.2C:43-12, or the provisions of this chapter.
d. A person seeking conditional discharge pursuant to this section shall pay to the court a fee of $75 which shall be paid to the Treasurer of the State of New Jersey for deposit in the General Fund. The defendant shall also be required to pay restitution, costs and other assessments as provided by law. A person may apply for a waiver of this fee, by reason of poverty, pursuant to the Rules Governing the Courts of the State of New Jersey, or the court may permit the defendant to pay the conditional discharge fee and other assessments in installments or may order other alternatives pursuant to section 1 of P.L.2009, c.317 (C.2B:12-23.1).
e. A person who has previously participated in a program of supervisory treatment pursuant to N.J.S.2C:43-12 or conditional dismissal pursuant to P.L.2013, c.158 (C.2C:43-13.1 et al.), or a Veterans Diversion Program pursuant to P.L.2017, c.42 (C.2C:43-23 et al.), shall be eligible for supervisory treatment under this section if the previous supervisory treatment concerned crimes or offenses involving manufacturing, distributing, or dispensing, or possessing or having under control with intent to manufacture, distribute, or dispense, marijuana or hashish in violation of paragraph (12) of subsection b. of N.J.S.2C:35-5; or obtaining, possessing, using, being under the influence of, or failing to make lawful disposition of marijuana or hashish in violation of paragraph (3) or (4) of subsection a., or subsection b., or subsection c. of N.J.S.2C:35-10; or a violation involving marijuana or hashish as described herein and a violation of N.J.S.2C:36-2 for using or possessing with intent to use drug paraphernalia with that marijuana or hashish, alone or in combination with each other; or any disorderly persons offense or petty disorderly persons offense subject to conditional discharge pursuant to this section.
(cf: P.L.2019, c.276, s.5)
2. N.J.S.2C:43-12 is amended to read as follows:
2C:43-12. Supervisory Treatment--Pretrial Intervention.
a. Public policy. The purpose of N.J.S.2C:43-12 through N.J.S.2C:43-22 is to effectuate a Statewide program of Pretrial Intervention. It is the policy of the State of New Jersey that supervisory treatment should ordinarily be limited to persons who have not previously been convicted of any criminal offense under the laws of New Jersey, or under any criminal law of the United States, or any other state when supervisory treatment would:
(1) Provide applicants, on an equal basis, with opportunities to avoid ordinary prosecution by receiving early rehabilitative services or supervision, when such services or supervision can reasonably be expected to deter future criminal behavior by an applicant, and when there is apparent causal connection between the offense charged and the rehabilitative or supervisory need, without which cause both the alleged offense and the need to prosecute might not have occurred; or
(2) Provide an alternative to prosecution for applicants who might be harmed by the imposition of criminal sanctions as presently administered, when such an alternative can be expected to serve as sufficient sanction to deter criminal conduct; or
(3) Provide a mechanism for permitting the least burdensome form of prosecution possible for defendants charged with "victimless" offenses, other than defendants who were public officers or employees charged with offenses that involved or touched their office or employment; or
(4) Provide assistance to criminal calendars in order to focus expenditure of criminal justice resources on matters involving serious criminality and severe correctional problems; or
(5) Provide deterrence of future criminal or disorderly behavior by an applicant in a program of supervisory treatment.
b. (1) Admission of an applicant into a program of supervisory treatment shall be measured according to the applicant's amenability to correction, responsiveness to rehabilitation and the nature of the offense.
(2) There shall be a presumption against admission into a program of supervisory treatment for:
(a) a defendant who was a public officer or employee whose offense involved or touched upon his public office or employment; and
(b) a defendant charged with any crime or offense involving domestic violence, as defined in subsection a. of section 3 of P.L.1991, c.261 (C.2C:25-19) if the defendant committed the crime or offense while subject to a temporary or permanent restraining order issued pursuant to the provisions of the "Prevention of Domestic Violence Act of 1991," P.L.1991, c.261 (C.2C:25-17 et al.) or if the crime or offense charged involved violence or the threat of violence. For purposes of this subparagraph, a crime or offense involves violence or the threat of violence if the victim sustains serious or significant bodily injury as defined in subsection b. or d. of N.J.S.2C:11-1, or the actor is armed with and uses a deadly weapon or threatens by word or gesture to use a deadly weapon as defined in subsection c. of N.J.S.2C:11-1, or threatens to inflict serious or significant bodily injury.
c. The decision and reasons therefor made by the designated judges (or assignment judges), prosecutors and program directors in granting or denying applications for supervisory treatment, in recommending and ordering termination from the program or dismissal of charges, in all cases shall be reduced to writing and disclosed to the applicant.
d. If an applicant desires to challenge the decision of the prosecutor or program director not to recommend enrollment in a program of supervisory treatment the proceedings prescribed under N.J.S.2C:43-14 and in accordance with the Rules of Court shall be followed.
e. Referral. At any time prior to trial but after the filing of a criminal complaint, or the filing of an accusation or the return of an indictment, with the consent of the prosecutor and upon written recommendation of the program director, the assignment judge or a judge designated by him may postpone all further proceedings against an applicant and refer said applicant to a program of supervisory treatment approved by the Supreme Court. Prosecutors and program directors shall consider in formulating their recommendation of an applicant's participation in a supervisory treatment program, among others, the following criteria:
(1) The nature of the offense;
(2) The facts of the case;
(3) The motivation and age of the defendant;
(4) The desire of the complainant or victim to forego prosecution;
(5) The existence of personal problems and character traits which may be related to the applicant's crime and for which services are unavailable within the criminal justice system, or which may be provided more effectively through supervisory treatment and the probability that the causes of criminal behavior can be controlled by proper treatment;
(6) The likelihood that the applicant's crime is related to a condition or situation that would be conducive to change through his participation in supervisory treatment;
(7) The needs and interests of the victim and society;
(8) The extent to which the applicant's crime constitutes part of a continuing pattern of anti-social behavior;
(9) The applicant's record of criminal and penal violations and the extent to which he may present a substantial danger to others;
(10) Whether or not the crime is of an assaultive or violent nature, whether in the criminal act itself or in the possible injurious consequences of such behavior;
(11) Consideration of whether or not prosecution would exacerbate the social problem that led to the applicant's criminal act;
(12) The history of the use of physical violence toward others;
(13) Any involvement of the applicant with organized crime;
(14) Whether or not the crime is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution;
(15) Whether or not the applicant's involvement with other people in the crime charged or in other crime is such that the interest of the State would be best served by processing his case through traditional criminal justice system procedures;
(16) Whether or not the applicant's participation in pretrial intervention will adversely affect the prosecution of codefendants; and
(17) Whether or not the harm done to society by abandoning criminal prosecution would outweigh the benefits to society from channeling an offender into a supervisory treatment program.
The prosecutor and the court, in formulating their recommendations or decisions regarding an applicant's participation in a supervisory treatment program, shall give due consideration to the victim's position on whether the defendant should be admitted.
f. Review of Supervisory Treatment Applications; Procedure Upon Denial. Each applicant for supervisory treatment shall be entitled to full and fair consideration of his application. If an application is denied, the program director or the prosecutor shall precisely state his findings and conclusion which shall include the facts upon which the application is based and the reasons offered for the denial. If the applicant desires to challenge the decision of a program director not to recommend, or of a prosecutor not to consent to, enrollment into a supervisory treatment program, a motion shall be filed before the designated judge (or assignment judge) authorized pursuant to the Rules of Court to enter orders.
g. Limitations. (1) [Supervisory] (a) Except as provided in subparagraph (b) of this paragraph, supervisory treatment may occur only once with respect to any defendant and any person who has previously received supervisory treatment under section 27 of P.L.1970, c.226 (C.24:21-27), a conditional discharge pursuant to N.J.S.2C:36A-1, a conditional dismissal pursuant to P.L.2013, c.158 (C.2C:43-13.1 et al.), or was granted a dismissal due to successful participation in the Veterans Diversion Program pursuant to P.L.2017, c.42 (C.2C:43-23 et al.) shall not be eligible for supervisory treatment under this section.
(b) A person who previously received supervisory treatment under section 27 of P.L.1970, c.226 (C.24:21-27), a conditional discharge pursuant to N.J.S.2C:36A-1, a conditional dismissal pursuant to P.L.2013, c.158 (C.2C:43-13.1 et al.), or was granted a dismissal due to successful participation in the Veterans Diversion Program pursuant to P.L.2017, c.42 (C.2C:43-23 et al.) shall be eligible for supervisory treatment under this section if the previous supervisory treatment concerned crimes or offenses involving manufacturing, distributing, or dispensing, or possessing or having under control with intent to manufacture, distribute, or dispense, marijuana or hashish in violation of paragraph (12) of subsection b. of N.J.S.2C:35-5; or obtaining, possessing, using, being under the influence of, or failing to make lawful disposition of marijuana or hashish in violation of paragraph (3) or (4) of subsection a., or subsection b., or subsection c. of N.J.S.2C:35-10; or a violation involving marijuana or hashish as described herein and a violation of N.J.S.2C:36-2 for using or possessing with intent to use drug paraphernalia with that marijuana or hashish, alone or in combination with each other; or any disorderly persons offense or petty disorderly persons offense subject to conditional discharge pursuant to N.J.S.2C:36A-1.
(2) Except as otherwise provided in paragraph (3) of this subsection, supervisory treatment, as provided herein, shall be available to a defendant irrespective of whether the defendant contests his guilt of the charge or charges against him.
(3) Admission into supervisory treatment shall be available to the following defendants only upon entering a plea of guilty: (a) a defendant charged with a first or second degree crime; (b) a defendant charged with any crime if the defendant had previously been convicted of a first or second degree crime; (c) a defendant charged with a third or fourth degree crime involving domestic violence, as defined in subsection a. of section 3 of P.L.1991, c.261 (C.2C:25-19); or (d) a defendant charged with any disorderly persons or petty disorderly persons offense involving domestic violence, as defined in subsection a. of section 3 of P.L.1991, c.261 (C.2C:25-19) if the defendant committed the offense while subject to a temporary or permanent restraining order issued pursuant to the provisions of the "Prevention of Domestic Violence Act of 1991," P.L.1991, c.261 (C.2C:25-17 et al.). For any such defendant, following the plea of guilty the plea shall be held in an inactive status pending termination of supervisory treatment pursuant to subsection d. or e. of N.J.S.2C:43-13. Upon successful completion of the program of supervisory treatment the charges shall be dismissed.
h. Termination. Termination of supervisory treatment under this section shall be immediately reported to the assignment judge of the county who shall forward such information to the Administrative Director of the Courts.
i. Appointment of Program Directors; Authorized Referrals. Programs of supervisory treatment and appointment of the program directors require approval by the Supreme Court with the consent of the assignment judge and prosecutor. Referrals of participants from supervisory treatment programs may be to any public or private office or agency, including but not limited to, programs within the probation service of the court, offering counseling or any other social service likely to aid in the rehabilitation of the participant and to deter the commission of other offenses.
j. Health Care Professional Licensing Board Notification. The program director shall promptly notify the State Board of Medical Examiners when a State licensed physician or podiatrist has been enrolled in a supervisory treatment program after he has been charged with an offense involving drugs or alcohol.
The Attorney General shall develop guidelines to ensure the uniform exercise of discretion by prosecutors in formulating their recommendations on participation in a supervisory treatment program by an applicant charged with a crime or offense involving domestic violence, as defined in subsection a. of section 3 of P.L.1991, c.261 (C.2C:25-19).
(cf: P.L.2017, c.42, s.10)
3. Section 1 of P.L.2013, c.158 (C.2C:43-13.1) is amended to read as follows:
1. Eligibility and Application. a. (1) Whenever any defendant who has not been previously convicted of any petty disorderly persons offense, disorderly persons offense or crime under any law of the United States, this State or any other state, and who has not, except as provided in paragraph (2) of this subsection, previously participated in conditional discharge under N.J.S.2C:36A-1, supervisory treatment under N.J.S.2C:43-12, or conditional dismissal under P.L.2013, c.158 (C.2C:43-13.1 et al.), or a Veterans Diversion Program pursuant to P.L.2017, c.42 (C.2C:43-23 et al.), is charged with a petty disorderly offense or disorderly persons offense except as provided in subsection b. of this section, the defendant may, after a plea of guilty or a finding of guilt, but prior to the entry of a judgment of conviction and with appropriate notice to the prosecutor, apply to the court for entry into the conditional dismissal program pursuant to the requirements of P.L.2013, c.158 (C.2C:43-13.1 et al.). As a condition of such application, the defendant shall submit to the fingerprint identification procedures as provided in R.S.53:1-15 before making such application to the court to allow sufficient time for verification of the defendant's criminal history by the prosecutor.
(2) A person who has previously received supervisory treatment under section 27 of P.L.1970, c.226 (C.24:21-27), a conditional discharge pursuant to N.J.S.2C:36A-1, a conditional dismissal pursuant to P.L.2013, c.158 (C.2C:43-13.1 et al.), or was granted a dismissal due to successful participation in the Veterans Diversion Program pursuant to P.L.2017, c.42 (C.2C:43-23 et al.) shall be eligible for supervisory treatment under this section if the previous supervisory treatment was provided for crimes or offenses involving manufacturing, distributing, or dispensing, or possessing or having under control with intent to manufacture, distribute, or dispense, marijuana or hashish in violation of paragraph (12) of subsection b. of N.J.S.2C:35-5; or obtaining, possessing, using, being under the influence of, or failing to make lawful disposition of marijuana or hashish in violation of paragraph (3) or (4) of subsection a., or subsection b., or subsection c. of N.J.S.2C:35-10; or a violation involving marijuana or hashish as described herein and a violation of N.J.S.2C:36-2 for using or possessing with intent to use drug paraphernalia with that marijuana or hashish, alone or in combination with each other; or any disorderly persons offense or petty disorderly persons offense subject to conditional discharge pursuant to N.J.S.2C:36A-1.
b. (1) A defendant shall not be eligible for participation in the conditional dismissal program if the offense for which the person is charged 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.
(2) Nothing in this act shall preclude a defendant charged with any disorderly persons offense or petty disorderly persons offense under chapter 35 or 36 of Title 2C from applying to the court for admission into the conditional discharge program in accordance with N.J.S.2C:36A-1.
c. In addition to the eligibility criteria enumerated in this section, the court shall consider the following factors:
(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 codefendants;
(9) Whether diversion of the defendant from prosecution is consistent with the public interest; and
(10) Any other factors deemed relevant by the court.
(cf: P.L.2017, c.42, s.8)
4. Section 4 of P.L.2017, c.42 (C.2C:43-26) is amended to read as follows:
4. a. At any time after the filing of a criminal complaint, but prior to the disposition of such complaint, an eligible servicemember, the public defender assigned to the eligible servicemember, or the servicemember's own legal counsel may make an application to the prosecutor to participate in the Veterans Diversion Program. The prosecutor may approve or conditionally approve an eligible servicemember's admission into the Veterans Diversion Program. An eligible servicemember may be conditionally approved for admission into the program pending verification of the person's veteran or servicemember status, review of the person's criminal history, and consideration of the findings of a clinical assessment of the person's mental health. Once admitted to the program, the prosecutor may move before the court to postpone proceedings while an eligible servicemember obtains a mental health assessment or participates in case management and mental health services. The court may grant the postponement of proceedings and release the servicemember on the persons' own recognizance subject to compliance with the conditions specified in the prosecutor's diversion agreement. If the prosecutor's review of the person's records and the clinical assessment reveals that the person does not qualify for the program or if the servicemember does not comply with the requirements of the diversion agreement, the prosecutor may notify the court that the State is prepared to proceed with the prosecution of the offense and the court shall schedule court proceedings as appropriate.
b. (1) Except as provided in paragraph (2) of this subsection, the prosecutor shall have the sole discretion to determine if an eligible servicemember qualifies for and is admitted to the Veterans Diversion Program pursuant to P.L.2017, c.42 (C.2C:43-23 et al.) after consideration of the nature of the eligible offense, the causative relationship between the person's diagnosed or apparent mental illness and the commission of the offense, the amenability of the servicemember to participation in the services of the program, the availability of case management and mental health services, the desires of any victim, the person's history of prior convictions, and the probability that diversion will promote the servicemember's recovery, prevent future criminal behavior, and protect public safety. A prosecutor may also consider and approve other diversion alternatives for servicemembers in lieu of the Veterans Diversion Program pursuant to P.L.2017, c.42 (C.2C:43-23 et al.).
(2) No eligible servicemember shall be admitted to the Veterans Diversion Program if the person has criminal charges pending for a crime of the second degree or higher, if the crime or offense involved violence or the threat of violence, or if the person was previously convicted of a violent crime enumerated in subsection d. of section 2 of P.L.1997, c.117 (C.2C:43-7.2). There shall be a presumption against admission into the Veterans Diversion Program, subject to the discretion of the prosecutor after consulting with any victim, for a servicemember charged with any crime or offense involving domestic violence, as defined in subsection a. of section 3 of P.L.1991, c.261 (C.2C:25-19) if the defendant committed the crime or offense while subject to a temporary or permanent restraining order issued pursuant to the provisions of the "Prevention of Domestic Violence Act of 1991," P.L.1991, c.261 (C.2C:25-17 et al.). For purposes of this paragraph, a crime or offense involves violence or the threat of violence if the victim sustains a bodily injury as defined in subsection a. of N.J.S.2C:11-1, or the actor is armed with and uses a deadly weapon or threatens by word or gesture to use a deadly weapon as defined in subsection c. of N.J.S.2C:11-1, or threatens to inflict a bodily injury.
(3) The prosecutor shall consult with victims of an eligible offense prior to approving an eligible servicemember's admission into the Veterans Diversion Program. Nothing in this subsection shall be construed to alter or limit the authority or discretion of the prosecutor to admit an eligible servicemember into the Veterans Diversion Program which the prosecutor deems appropriate.
c. The prosecutor's approval of an application for admission into the Veterans Diversion Program pursuant to this section shall not be conditioned on an admission or plea of guilt by an eligible servicemember.
d. To qualify for prosecutorial diversion under this section, an eligible servicemember shall agree in writing to the following terms, where relevant to the eligible offense:
(1) Participate in case management and mental health services initiated through the Veterans Diversion Resource entity or other similar services and to cooperate with any recommended course of treatment, including the use of medications as prescribed and participation in counseling;
(2) Authorize the case management or mental health service provider to release to the prosecutor periodic status reports regarding the servicemember's participation, cooperation, and recovery progress with case management and mental health services;
(3) Cooperate with case management service providers to procure housing, education, and employment services, where appropriate;
(4) Pay restitution for damages that have resulted from the offense;
(5) Refrain from the use of alcohol or illegal drugs or frequent any place where alcohol or illegal drugs are sold and used;
(6) Refrain from the possession or use of firearms or other weapons;
(7) Refrain from further criminal activity;
(8) Refrain from any contact with a victim of the offense;
(9) Cooperate with a mentor, where assigned, and the United States Department of Veterans Affairs Justice Outreach Specialist;
(10) Suspend the tolling of time for the purposes of the servicemember's right to a speedy trial while the servicemember is participating in the program;
(11) Advise the prosecutor of any change in the servicemember's residential address or any change in the provider of case management and mental health services; and
(12) Any other terms and conditions related to the servicemember's recovery and public safety deemed appropriate by the prosecutor.
e. The prosecutor shall determine the duration of the servicemember's participation in the Veterans Diversion Program, except that the servicemember's participation in the program shall not exceed two years from the date of the diversion agreement. The term of the servicemember's participation shall be based on the initial clinical evaluation and recommendations, status reports of the servicemember's participation, and progress reports from the case management and mental health service providers, and, where assigned, the servicemember's mentor.
f. The servicemember shall be responsible for coordinating with the Veterans Diversion Resource entity or other case management and mental health service provider to ensure that the prosecutor receives periodic reports on the servicemember's participation, cooperation and recovery progress. The servicemember shall contact the Veterans Diversion Resource entity or other case management and mental health service provider within seven days of the date of the diversion agreement.
g. The court shall review the status of the deferred prosecution of the servicemember no later than six months from the date on which the court approved the prosecutor's initial request for a postponement of the proceedings, and, thereafter, every six months from the most recent review, to consider, based on information provided by the prosecutor, whether the postponement of court proceedings as requested by the prosecutor should continue.
h. To the extent that a sufficient number of mentors are available, the prosecutor or the case management provider on behalf of the prosecutor, shall assign a mentor to the eligible servicemember from the registry of mentors provided by the Department of Military and Veterans' Affairs, except that an insufficient number of mentors available for assignment shall not in itself prevent a prosecutor from diverting an eligible servicemember pursuant to P.L.2017, c.42 (C.2C:43-23 et al.).
i. The prosecutor shall notify the United States Department of Veterans Affairs Justice Outreach Specialist assigned to represent New Jersey when an eligible servicemember who is a veteran has been admitted into the Veterans Diversion Program to facilitate outreach to the servicemember.
j. If, after a minimum of six months from the date of the diversion agreement, the prosecutor is satisfied that the servicemember has complied with the terms and conditions of the diversion agreement, has not been the subject of any subsequent criminal charges, and, based on clinical reports, continues to make progress with case management services and mental health recovery, the prosecutor may move before the court for the dismissal of the criminal charge pending against the servicemember and terminate the servicemember's participation in the Veterans Diversion Program. Alternatively, the prosecutor may require that the servicemember continue participation in the program until sufficient evidence of progress toward recovery is available, except that continued participation shall not exceed the two-year time limit as provided in subsection e. of this section.
k. If, at any time, the prosecutor finds that the servicemember has failed to comply with any term or condition of the diversion agreement, the prosecutor may notify the court that the State is prepared to proceed with the prosecution of the offense and the court shall schedule court proceedings as appropriate.
l. No fee shall be assessed to a servicemember for participation in the Veterans Diversion Program.
m. (1) An eligible servicemember may be admitted to the Veterans Diversion Program one or more times at the discretion of the prosecutor, subject to the restrictions in this section, if such diversion promotes the servicemember's recovery, prevents the commission of future offenses, and protects the safety of the public. Nothing in P.L.2017, c.42 (C.2C:43-23 et al.) shall preclude an eligible servicemember from applying for admission to a criminal justice diversion program, including a program of supervisory treatment pursuant to N.J.S.2C:43-12, conditional discharge pursuant to N.J.S.2C:36A-1, or conditional dismissal pursuant to section 1 of P.L.2013, c.158 (C.2C:43-13.1), as an alternative to the Veterans Diversion Program to the extent that the servicemember meets the eligibility criteria and qualifies for those programs. [A] Except as provided in paragraph (2) of this subsection, a dismissal of a criminal complaint resulting from successful participation in a Veterans Diversion Program pursuant to this section shall bar a servicemember's subsequent eligibility for a program of supervisory treatment pursuant to N.J.S.2C:43-12, conditional discharge pursuant to N.J.S.2C:36A-1, or conditional dismissal pursuant to section 1 of P.L.2013, c.158 (C.2C:43-13.1); however an eligible servicemember may seek subsequent admission to the Veterans Diversion Program and may be admitted at the sole discretion of the prosecutor.
(2) A dismissal of a criminal complaint resulting from successful participation in a Veterans Diversion Program pursuant to this section shall not bar servicemember's subsequent eligibility for a program of supervisory treatment pursuant to N.J.S.2C:43-12, conditional discharge pursuant to N.J.S.2C:36A-1, or conditional dismissal pursuant to section 1 of P.L.2013, c.158 (C.2C:43-13.1) section if the participation in the previous program was for crimes or offenses involving manufacturing, distributing, or dispensing, or possessing or having under control with intent to manufacture, distribute, or dispense, marijuana or hashish in violation of paragraph (12) of subsection b. of N.J.S.2C:35-5; or obtaining, possessing, using, being under the influence of, or failing to make lawful disposition of marijuana or hashish in violation of paragraph (3) or (4) of subsection a., or subsection b., or subsection c. of N.J.S.2C:35-10; or a violation involving marijuana or hashish as described herein and a violation of N.J.S.2C:36-2 for using or possessing with intent to use drug paraphernalia with that marijuana or hashish, alone or in combination with each other; or any disorderly persons offense or petty disorderly persons offense subject to conditional discharge pursuant to N.J.S.2C:36A-1.
n. The dismissal of charges based on a servicemember's successful participation in the Veterans Diversion Program pursuant to this section shall not be deemed:
(1) a conviction for purposes of disqualifications or disabilities, if any, imposed by law upon conviction of a petty disorderly persons, disorderly persons offense, or a crime, but shall be reported to the State Bureau of Identification criminal history record information files for purposes of determining future eligibility or exclusion from other diversion programs; or
(2) a conviction for the purpose of determining whether a second or subsequent offense has occurred under any law of this State.
(cf: P.L.2017, c.42, s.4)
5. This act shall take effect on the 60th day following enactment and shall be retroactive to February 22, 2021.
STATEMENT
This bill provides that persons previously arrested for certain marijuana offenses who participated in conditional discharge, supervisory treatment, or another diversion program for first offenders would be eligible to participate in a diversion program again if participation in the program the first time was for a marijuana offense that is no longer unlawful.
RECENT ENACTMENTS
P.L.2021, c.19, enacted February 22, 2021, decriminalized the possession of up to six ounces of marijuana, or up to 170 grams of hashish. The enactment provides that there are no criminal or civil penalties for such possession.
The enactment also decriminalized a first offense of manufacturing, distributing, or possessing with intent to distribute one ounce or less of marijuana, or five grams or less of hashish. A first offender is subject to a written warning, which also indicates that a subsequent offense of manufacturing, distributing, or possessing with intent to distribute this amount of marijuana or hashish constitutes a crime of the fourth degree.
P.L.2021, c.16, also enacted February 22, 2021, legalized the manufacture, purchase, and sale of regulated cannabis. The enactment also established the Cannabis Regulatory Commission. Under P.L.2021, c.16, regulated cannabis will be lawful in this State when the commission promulgates regulations.
ATTORNEY GENERAL DIRECTIVE
In light of the enactment of P.L.2021, c.16 and c.19, the New Jersey Attorney General issued Directive No. 2021-1 on February 22, 2021. It directed all prosecutors in the State to dismiss any pending marijuana cases where the underlying offense had been legalized. The directive further indicated that the Administrative Office of the Courts would vacate by operation of law any guilty verdict, plea, placement in a diversionary program, or other entry of guilt on a matter where the conduct occurred prior to February 22, 2021. Also vacated would be any conviction, remaining sentence, ongoing supervision, or unpaid court-ordered financial assessment of any person serving a sentence of incarceration, probation, parole or other form of community supervision as a result of the person's conviction for the offenses that had been legalized.
DIVERSIONARY PROGRAMS
The bill applies to the following diversionary programs:
--- Conditional discharge, N.J.S.A.2C:36A-1;
--- Pretrial Intervention (PTI), N.J.S.A.2C:43-12;
--- Conditional dismissal in municipal court, N.J.S.A.2C:43-13.1 et al.; and
--- The Veterans' Diversion Program, N.J.S.A.2C:43-23 et seq.
Under current law, these programs require that the person wishing to participate not have been a previous participant in that particular program or in another diversionary program. Under the bill, previous participation in a diversionary program would no longer bar participation on a second occasion if the first participation was for a marijuana or hashish offense that was subsequently decriminalized.
EFFECTIVE DATE
The bill would take effect on the 60th day following enactment. It is retroactive to February 22, 2021, the effective date of P.L.2021, c.19.
