The New Jersey State Bar Association argued that pretrial interventions (PTI) granted for now-expungable marijuana offenses are no longer a bar to future PTI based on legislative intent. Criminal Law Section Chair Michael B. Roberts argued the matter as amicus on behalf of the Association before a three-judge panel in the Appellate Division in State v. Gomes last week in Trenton.
“We are not asking the Court to legislate from the bench,” said Roberts, who urged the court to affirm the decision below. The NJSBA argued that the legislative intent of the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) was clear in that it meant to put individuals who had been convicted of offenses under the now-decriminalized statutes in the same position as they would have been had the offense not been criminalized. That is why expungements of prior convictions were directed within the legislation to be made “by operation of law,” said Roberts.
State v. Gomes is one of three cases that was heard last week related to the PTI issue. A person can only receive the benefits of PTI or a diversion one time. Once used, a person may never be eligible for either again on a subsequent arrest and charges. A Middlesex County case, Richard Gomes applied for PTI after being charged with driving while intoxicated and two counts of assault by auto. He was deemed ineligible because he had previously received the benefit of a conditional discharge in 2013 for possession of marijuana – which is no longer a criminal offense with the passage of CREAMMA. The trial court ruled that he could apply to PTI.
Arguing that a prior PTI should bar further PTIs, Patrick F. Galdieri II of the Middlesex County Prosecutor’s Office said that the legislative intent was clear in that it did not intend to wipe the slate clean as to prior PTIs. Otherwise, he said, the Legislature would have amended the PTI statute. He pointed to legislation since introduced that would permit PTI for such offenses, but noted that this could have been written into CREAMMA. Scott A. Gorman, attorney for Gomes, argued otherwise, noting the discriminatory impact of marijuana laws and the Legislature’s efforts to emphasize its discriminatory impact in passing CREAMMA. The legislation brought sweeping changes, which made it implicit that PTIs would also be eliminated, said Gorman.
Arguing in favor of wiping away PTIs along with the NJSBA was Alex Shalom of the American Civil Liberties Union of New Jersey, Alison Perrone of the Office of the Public Defender and the Attorney General’s office. Judges Michael J. Haas and Hany A. Mawla peppered the attorneys with questions about legislative intent, coming back to the question of why the Legislature did not explicitly state that PTIs should be dismissed. Judge Stephanie Ann Mitterhoff also presided over the matter.
Two other cases the panel heard involved similar circumstances. In State v. Sheira, the Morris County trial judge held that the defendant was ineligible for PTI, arguing he was bound by the text of N.J.S.A. 2C:43-12g and State v. O’Brien, 418 N.J. Super. 428, 438 (App. Div. 2011). Both the statute and O’Brien held that defendants may only engage in PTI once. The trial judge in Sheira opined that the Legislature should have more explicitly stated its intent by amending the PTI statute. The other companion case, State v. Barry, was also being considered by the Appellate Division as it contained similar issues involving PTI and marijuana charges. The NJSBA did not file amicus in either case.
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.