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 state Supreme Court ruled that people who received conditional discharges for marijuana offenses now considered automatically expunged under the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) are not precluded from future admission into pretrial intervention (PTI). The holding is consistent with the New Jersey State Bar Association’s argument that CREAMMA wiped the slate clean for these charges. The NJSBA participated as amicus curiae in both the Appellate Division and the Supreme Court with Association Criminal Law Section Chair Michael B. Roberts arguing on behalf of the NJSBA. Roberts also authored the brief.
“Upon harmonizing the [CREAMMA, PTI and expungement] statutes, we conclude that persons who received pre-CREAMMA conditional discharges specified for marijuana offenses – just like persons who had pre-CREAMMA convictions for those marijuana offenses – are no longer categorically precluded from future admission into PTI,” said the Supreme Court in its 39-page opinion written by Judge Jack Sabatino, who is temporarily assigned to the Supreme Court. The court was unanimous in this decision.
“As an amicus party to the case, the NJSBA argued to the Court that CREAMMA undid the harms of the past and tried to right the wrongs already done,” said NJSBA President Jeralyn L. Lawrence. “We are gratified that Court has interpreted the law as the Legislature intended – to give defendants in marijuana cases a clean slate.”
The consolidated matter of State v. Gomes consisted of two appeals involving charges against Richard Gomes in Middlesex County and Moataz Sheira in Morris County. Gomes and Sheira received conditional discharges before CREAMMA, both received additional charges and both were denied PTI because of their prior conditional discharges. Sheira filed a PTI motion with the support of Morris County Prosecutor to appeal his ineligibility, which was denied by the trial court. In Gomes, the Middlesex County Prosecutor denied his appeal to the Law Division.
The posture of this matter was made even more complicated because the Middlesex County Prosecutor’s Office was the only party arguing that conditional discharges operated as a bar to PTI despite CREAMMA’s effect on prior marijuana offenses. But state Attorney General Matthew Platkin, who was asked by the Court to appear as amicus curiae, argued that this was not the intent when Gov. Phil Murphy signed CREAMMA into law. Aligned with Platkin were the state Office of the Public Defender, who represented Sheira, Scott Gorman, who represented Gomes, Matthew W., Kelly of the Morris County Prosecutor’s Office, and amici American Civil Liberties Union of New Jersey, Association of Criminal Defense Lawyers of New Jersey, Legal Services of New Jersey, as well as the NJSBA.
The case turned on statutory interpretation and legislative intent, parsing out the language in the PTI and expungement statutes and highlighting CREAMMA’s language “by operation of law.” “Notably, the phrase ‘by operation of law appears nowhere else in the entire Criminal Code,” said the Supreme Court in its opinion.
“At the very least, ‘by operation of law’ signifies that an individual with an eligible marijuana conviction or conditional discharge should not have to take affirmative steps to file an expungement petition with a court or prove rehabilitation to obtain relief. The record and adverse effect of those previous charges is to be eliminated automatically and instantaneously. The previous conduct, which had been illegal under the former statutes and is now illegal, is intended to be treated as if it did not happen,” said the Court.
he Court underscored that their reversal does not automatically entitle a PTI applicant with a previous marijuana conditional discharge to be admitted into the program. Rather, the matters have been remanded for further review in Gomes’s case and to implement the prior decision in Sheira’s case unless his circumstances have materially changed.
“We stress that this is an exceptional situation involving a sweeping new statute that we have endeavored to harmonize sensibly with pre-existing laws,” said the Court.