Marijuana and Diversionary Programs (Part 3)

Judge Mawla continued in relevant part: For these reasons, the holdings in the Middlesex cases cannot stand because they are contrary to the language in the controlling statutes. “A statute cannot be interpreted to abrogate existing law by implication alone,” because “the Legislature is presumed to intend a consistent body of law.” 1A Singer, Sutherland Statutory Constr. at § 23.9. “There is a strong presumption against repealing statutory provisions by implication,” Voss v. Tranquilino (2011), and “every reasonable construction should be applied to avoid a finding of implied repealer.” Twp. of Mahwah v. Bergen Cty. Bd. of Tax’n (1985). Accord N.J. Ass’n of Sch. Adm’rs v. Schundler (2012). Because “implied repealers are disfavored” they are to “be avoided if the two enactments” at issue “can be read harmoniously and sensibly.” Brown v. Jersey City (App. Div. 1996). “When two statutes may stand together, each governing its own sphere of operation, there is no inconsistency from which an intent to repeal may be inferred.” Jackson Twp. Bd. of Educ. v. Jackson Educ. Ass’n ex rel. Scelba, (App. Div. 2000).

N.J.S.A. 2C:52-6.1 is neither inconsistent with, nor repugnant to, the Legislature’s earlier enacted rule permitting only one prior diversionary placement, including conditional discharges under N.J.S.A. 2C:36A-1(c)(3). N.J.S.A. 2C:52-6.1 did not alter the definition of an expunged record or the legal consequences flowing from an expungement. Further, our overall review of CREAMMA does not support the Middlesex cases’ conclusion that the Legislature sought to extinguish “any other collateral consequences” arising from a prior diversionary program because the statute orders the expungement of “any case that . . . includes . . . any disorderly persons offense or petty disorderly persons offense subject to discharge,” as well as “any remaining sentence, ongoing supervision, or unpaid court-ordered financial assessment . . . .” N.J.S.A. 2C:52-6.1. The statute is forward looking and does not contradict N.J.S.A. 2C:42-12(g), limiting PTI to one opportunity. Indeed, the goals of PTI are “to deter future criminal conduct and to provide a one-time diversion from prosecution.” Moreover, possessing cannabis in quantities of less than fifty grams was not only a disorderly persons offense at the time of defendants’ prior diversionary placements, prior possession remains a disorderly persons offense. N.J.S.A. 2C:35-10(a)(4)(a). Therefore, each defendant benefitted by receiving a conditional discharge.

This opinion also overlooks the language in our pretrial intervention court rules that says that diversions should generally only be granted one time. The term “generally” indicates that two diversions can be granted under exceptional circumstances. Legalization of the prior offense would seem to qualify as an “exceptional” circumstance. This is especially true where the PTI applicants have paid fines, undergone probation supervision, performed community service, and the like for an action that is now seen as legal and unworthy of punishment.