Marijuana and Diversionary Programs (Part 4)

by | Jan 28, 2023 | Blog, Criminal Law, Drug Crime, Marijuana, Monmouth County, New Jersey, Ocean County

The Appellate Division concluded with the following in relevant part: If the Legislature intended to repeal or amend, N.J.S.A. 2C:43-12(g)(1), N.J.S.A. 2C:43-21(d), N.J.S.A. 2C:2C:52- 20, N.J.S.A. 2C:52-27(b), or overrule Rules 3:28-1(c)(1) and -5(a), it would have done so. Our review of the relevant statutes and legislative history shows no “clear and compelling evidence” of that intent. There is no support for the Middlesex Vicinage judge’s finding the Legislature intended “to restore those who have previously suffered any adverse consequence to the position they enjoyed before commission of an offense now deemed lawful.”

In the Middlesex cases, the judge concluded O’Brien was not persuasive because the defendant would not receive an expungement by vacating a prior conditional discharge, as doing so would simply return the previously vacated charges to the trial calendar. In contrast, the judge found N.J.S.A. 2C:52-6.1 did not “necessarily” vacate defendants’ prior conditional discharges, but rather “expunged the underlying offense that resulted in the conditional discharge.” We conclude this effort to distinguish O’Brien misread the case because the issue of whether the conditional discharge itself was later vacated was irrelevant; the dispositive issue was whether “the individual previously received supervisory treatment which prohibited them from re-enrollment into another diversionary program under PTI.”

The interpretation of the statutory framework in the Middlesex cases is also irreconcilable with CREAMMA and its legislative history. The Assembly Appropriations Committee’s Statement to CREAMMA explains that “using . . . marijuana . . . would no longer be illegal . . . and thus there would be no legal consequences flowing” from that use, but “as to individuals facing existing consequences associated with their past . . . offenses involving marijuana . . . the bill provides multiple opportunities for criminal justice relief.” A. Approp. Comm. Statement to A. 21 25. The Statement then limited discussion of the relief in the same manner as the statutory text, namely; expeditious dismissal of pending charges, vacating of penal and remunerative consequences for such charges, and expungement. Notably, the language describing “opportunities for criminal justice relief” from existing consequences for past offenses is narrower than the language purporting that “no legal consequences” will flow from future marijuana use made lawful under the amended statutes. Generally, a word is given more precise content by the neighboring words with which it is associated. Herzog v. Twp. of Fairfield (App. Div. 2002). Had the Committee intended to convey that all legal consequences from all prior offenses would be extinguished, it would have similarly stated “no legal consequences” will flow from prior charges, instead of listing the limited opportunities for potential relief from those consequences.

“The Legislature is presumed to be familiar with its existing enactments and is presumed to intend that its newer enactments be harmonized with the existing ones, in light of the Legislature’s purpose.” We cannot inject language into a carefully worded statute. The introduction of legislation to remedy this issue confirms our reading of the law, and the remedy is appropriately left to the Legislature to enact with retroactive effect or not.

The Appellate panel’s rationale gives undue weight to the Legislature’s alleged awareness of prior laws. There are far too many prior laws to make this presumption.