2C:43-13.1. Eligibility and Application. a. Eligibility and Application. Whenever any defendant who has not been previously convicted of any petty disorderly persons offense, disorderly persons offense or crime under any law of the United States, this State or any other state, and who has not previously participated in conditional discharge under N.J.S.2C:36A-1, supervisory treatment under N.J.S.2C:43-12, or conditional dismissal under P.L.2013, c.158 (C.2C:43-13.1 et al.), is charged with a petty disorderly offense or disorderly persons offense except as provided in subsection b. of this section, the defendant may, after a plea of guilty or a finding of guilt, but prior to the entry of a judgment of conviction and with appropriate notice to the prosecutor, apply to the court for entry into the conditional dismissal program pursuant to the requirements of P.L.2013, c.158 (C.2C:43-13.1 et al.). As a condition of such application, the defendant shall submit to the fingerprint identification procedures as provided in R.S.53:1-15 before making such application to the court to allow sufficient time for verification of the defendant’s criminal history by the prosecutor.
Paragraph (a) addresses the required guilty plea that is a pre-condition to the conditional dismissal program. Note that the program is also available to defendants after they are found guilty at trial. Thus, it would appear that defendants interested in the program would have nothing to lose by going to trial and giving themselves a shot at a “not guilty” finding and dismissal. However, as a practical matter, demanding a trial will almost always lead to additional court dates, time spent waiting at court, and additional legal fees incurred while the state delays in presenting their case. These delays are sometimes caused by unforeseeable issues with witness availability or a court’s busy calendar. More often, the delays are intentionally used by the state with the hope that a defendant will get tired of spending their time and money and will agree to a disposition that does not require the state to conduct a trial. Additionally, courts are vested with some discretion regarding who can participate in the program. There are some judges that would use this discretion to keep a defendant out of the program if the defendant forced the court and state to conduct a trial in a case in which the court found the proofs of the offense(s) to be very strong. This use/abuse of discretion is commonly referred to as a “trial tax”.
Note that the conditional dismissal program is also more restrictive of who can participate with regard to prior records of convictions. The conditional discharge program is available to anyone who has not been convicted of a drug offense (and who has not already participated in a diversionary program). A conviction for any petty disorderly persons or disorderly persons offenses, whether or not the offense is drug-related, is a bar to the conditional dismissal program.