On June 9, 2022, a three-judge appellate panel decided the consolidated Middlesex and Morris County cases of State v. Richard Gomes. The principal issue before the Court under N.J.S.A. 2C:43-12 was whether marijuana reform legislation was whether a past diversionary program for a marijuana offense made defendants ineligible for a subsequent diversion.
Judge Mawla wrote for the Appellate Division in relevant part: We reject the arguments questioning the reasoning in G.D. and O’Brien since the advent of CREAMMA because the “‘Legislature is presumed to be aware of the judicial construction placed on an enactment.’ When, after a long period, the Legislature does not act to amend a statute to contradict our interpretation, then we may presume its acquiescence to the construction given to the provision.” State v. Smith (2009) (quoting State v. Chapland, (2006)). “The Legislature knows how to draft a statute to achieve a result when it wishes to do so.” State v. W. World, Inc., (App. Div. 2015) (quoting Zabilowicz v. Kelsey, (2009)).
The 2013 amendments to N.J.S.A. 2C:43-12(g) explained “that a person who has participated in . . . conditional discharge will also not be eligible for PTI.” S. Judiciary Comm. Statement to A. 3598 at 4 (June 6, 2013). That clearly expressed legislative intent cannot be ignored.
When the Legislature enacted N.J.S.A. 2C:52-6.1, ordering the expungement of “any case that . . . included . . . any disorderly persons offense or petty disorderly persons offense . . . subject to conditional discharge” for marijuana offenses, it created a different procedure for underage persons found in possession of cannabis, including the issuance of warnings and write ups for infractions. N.J.S.A. 2C:33-15(a)(1). Notably, warnings and write ups for underage persons “shall be destroyed or permanently deleted,” and “shall not be . . . considered . . . with respect to any . . . eligibility or decision for diversion or discharge.” N.J.S.A. 2C:33-15(a)(6)(b). Unlike expunged records, the effect of directing the destruction of records for underage persons is that the records will not be placed in the AOC’s supervisory treatment index, N.J.S.A. 2C:43-21(d), for potential use in evaluating future PTI applications, N.J.S.A. 2C:52-20.
This opinion highlights an important decision for defendants to make in municipal courts regarding diversionary programs. Most attorneys recommend accepting a conditional discharge that can lead to dismissal of the charges. The minority position that I have always taken is that it is better to take a disorderly persons conviction with a fines-only sentence and thereby maintain diversionary program eligibility in the event of a felony charge. There are limited exceptions to this approach. But this approach has saved many clients from felony convictions which are often life-changing. Disorderly persons convictions do not have nearly the same effects on people’s lives.
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