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.
The NJSBA participated as amicus before the Supreme Court in State v. Gomes, which considers whether pretrial intervention is available for defendants who have received a prior PTI or diversion for a now-expungable cannabis charge. NJSBA’s Criminal Law Section Chair, Michael B. Roberts, wrote the brief in both the Appellate Division and the Supreme Court and argued the matter before the Appellate Division.
Gomes is one of four cases being considered by the Supreme Court, which questioned the legislative intent of the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA), passed last year. CREAMMA’s sponsors made statements about the sweeping effect of eradicating certain cannabis charges from the records of people who were charged with it from the past and getting rid of any pending charges and/or penalties from those same charges. The trial court in Gomes agreed, allowing the defendant to enter PTI following charges of driving while intoxicated and assault by auto. The prosecutor in that case deemed him ineligible because of a prior conditional discharge in 2013 for possession of marijuana. This is no longer a criminal offense with the passage of CREAMMA.
The Appellate Division disagreed with the NJSBA and other defendants and stakeholders, including the Office of the Public Defender, Attorney General, and the American Civil Liberties Union of New Jersey, arguing that “CREAMMA did not amend, reference or supersede the conditional discharge, PTI or expungement statutes.” In its analysis, the Appellate Division considered the existence of A1978 (Mukherji) (2022), which proposes to amend the expungement statutes to make individuals such as Richard Gomes, the defendant, eligible for a diversion program or PTI.
The NJSBA argues that the intent of CREAMMA was evident to put people back into the position they would have been in had they not been charged. Furthermore, it pointed out that the Supreme Court held it erroneous for legislative intent to be inferred from a bill that has not been fully enacted.
“As a fundamental matter, Assembly bills are not laws and have no binding legal effect,” said the NJSBA in its brief. “One cannot infer legislative intent from a bill not passed by both houses; at most, it infers the sentiments and desire of the bill’s sponsor and not the Legislature at large.”
The NJSBA further argues that the Appellate Division misinterpreted the pending legislation because the explicit language of the bill mirrored the intent of CREAMMA to erase not just the charges, but also the penalties resulting from the charges. “The analysis of A-1978, however, did not include the fact that the pending bill has retroactive effect,” said the NJSBA in its brief. Finally, the NJSBA pointed out that the bill was introduced only after it was clear that CREAMMA was interpreted in ways that were not intended.
The NJSBA supports A1978, which remains pending in the Legislature.