A series of cases pending in the Appellate Division will determine how past marijuana offenses will be viewed when defendants are being considered for intervention.
The cases ask whether a person who has previously participated in pretrial intervention (PTI) for an offense now expungable due to the passage of the Cannabis Regulatory, Enforcement Assistance and Marketplace Modernization Act (CREAMMA) is now eligible for PTI services. There are four cases being considered by the Appellate Division because of the disparate treatment around the state.
Because these cases are now handled differently from county to county, the New Jersey State Bar Association (NJSBA) filed a motion seeking leave to participate as amicus curiae in State v. Gomes (A-3477-20) to argue such people should be eligible and the issue should be treated uniformly throughout the state. NJSBA Criminal Law Section Chair-Elect Michael Roberts wrote the brief. The other pending cases are State v. Barry (A-697-21), State v. Chiriboga (A-581-21) and State v. Sheira (A-198-21).
In Gomes, the NJSBA argued that the legislative intent and the purpose of the passage of CREAMMA requiring expungements of certain crimes and the vacation of certain open charges by operation of law was “to put individuals who previously faced such an offense in the same position they would have been in had the offense not been criminalized.”
In Gomes, the defendant was found ineligible for PTI for a charge of driving while intoxicated and two counts of assault by auto because of his previous conditional discharge for possession of marijuana in 2013. The trial court granted his application for PTI holding that CREAMMA expunged the underlying charge leading to Gomes’ first PTI “by operation of law.”
“It is evident that when a statute, such as the one enacted here, provides that one who commits an offense subject to a conditional discharge must have that offense ‘expunged by operation of law, and any remaining sentence, ongoing supervision, or unpaid court-ordered financial assessment… shall be vacated by operation of law,’ it must then follow that any other collateral consequence for the expunged offense should also be prohibited, including the statutory bar to PTI eligibility for one who had been previously enrolled in a diversion program pursuant to the conditional discharge statute,” said the state Superior Court Judge Joseph Paone.
In its appeal, the state argued Gomes’ participation in PTI “rendered him statutorily ineligible for PTI” regardless of the fact that the underlying marijuana possession offense had been expunged by operation of law.
In urging that the trial court’s decision on Gomes be affirmed, the NJSBA said “the trial judge properly recognized that individuals who were who were previously convicted of marijuana offenses covered by [CREAMMA] should not be automatically prohibited from admission into PTI on the sole account of the prior supervisory treatment that is no longer a crime.”
In a companion case, Sheira, however, the trial judge denied Sheira’s application to PTI because of a conditional discharge he received for possession of marijuana in 2016. There, the state Superior Court Judge Stephen J. Taylor held that he considered himself bound to the text of the PTI statute and State v. O’Brien, 418 N.J. Super. 42, 438 (App. Div. 2011) that PTI must be denied to this defendant.
While the NJSBA is not seeking amicus into all of the companion cases, its concern for the treatment of this question in other counties requires focus by the court to determine this issue uniformly.
“The NJSBA urges the Court to resolve this issue in favor of not only the defendant in this and the companion cases being heard at the same time, but also the many future defendants who are likely to find themselves similarly situated,” said the NJSBA in its brief.
No decision has yet been made as to the NJSBA’s filing for leave to appear as amicus, and the NJSBA continues to monitor this matter and decisions similarly situated.
This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters. To learn more, visit njsba.com.