New Jersey Law Journal
Gov. Chris Christie on Monday signed long-awaited legislation that establishes a diversionary program for minor offenders in municipal court.
The law, taking effect in 120 days, will allow conditional dismissal of disorderly persons or petty disorderly person offenses for eligible defendants in limited circumstances — similar to pretrial intervention in Superior Court.
It remedies what proponents have called a fundamental unfairness: that Superior Court criminal defendants could have their cases diverted from prosecution while municipal court defendants generally could not.
Municipal courts could until now only downgrade statutory charges to ordinance violations — a practice discouraged by the Attorney General’s Office and prohibited by some county prosecutors — or drop charges after a term of community service.
“It gives you another tool to move the docket [and] to try to get people on the right path,” says Senate sponsor Nicholas Scutari, D-Union, who is also Linden’s municipal prosecutor.
“Lawyers know about the bill,” he adds. “They’ve been looking for it.”
The bill, A-2598/S-2588, allows eligible participants to enter the program following a guilty plea or finding of guilt but before entry of conviction and must serve a year of probation and pay restitution, court costs, fines and other mandatory or discretionary assessments.
Successful completion of the program won’t be deemed a prior conviction for purposes of future prosecution.
The court must consider other eligibility factors, including the nature of the offense, the defendant’s background and the victim’s wishes.
Excluded from the program are defendants charged with gang activity; official breach of public trust; domestic violence; offenses against the elderly, the disabled or minors; intoxicated driving; and animal cruelty.
Participation is allowed only once and would foreclose eligibility for other diversionary programs. Likewise, prior participation in another diversionary program would render a defendant ineligible for conditional dismissal.
For example, defendants charged with drug-related disorderly persons offenses are excluded because they are eligible for conditional discharge — a separate program — if they have no prior convictions in any jurisdiction.
Any application approved over the municipal prosecutor’s objection will be stayed for 10 days, allowing for appeal to the Superior Court.
Participants must pay a $75 program fee, to be deposited in a judiciary fund. Fees and other assessments may be waived or payment plans implemented for indigent defendants.
The judiciary, which lent its support to the legislation, will incur a onetime cost to update its computer system to accept the new fee — estimated at $348,000. Ongoing intake and monitoring costs will be offset by the fees.
“We have no specific concerns at this time, but we know that any brand-new program needs to be monitored very carefully,” says judiciary spokeswoman Winnie Comfort. “We expect to identify any problems that arise and be prepared to address them quickly.”
An earlier iteration of the bill, which sought to impose a $500 application fee and called for raising the $75 fee for existing diversionary programs to $350, was conditionally vetoed by Christie last November. He supported the legislation in principle, calling it “forward thinking,” but demanded a $75 fee instead.
Lawmakers adopted Christie’s changes and reintroduced the legislation, which progressed with no known opposition inside or outside the Legislature.
An Assembly cosponsor, Jon Bramnick, R-Union, says: “Everybody in the municipal court practice knew this was extremely important.”
Bramnick, of Bramnick, Rodriguez, Mitterhoff, Grabas & Woodruff in Scotch Plains, points out that a minor conviction can affect a defendant’s ability to apply for professional licensure in the future.
“I’ve represented these people,” says Bramnick. “This was really a loophole in the law.”
Jon-Henry Barr, president of the New Jersey State Municipal Prosecutors Association, says municipal prosecutors are “overwhelmingly pleased.”
He adds that lawyers must be aware that entry into the program does depend on a guilty plea, which could be problematic for undocumented immigrants or resident aliens.
Harlan York, who heads a Newark immigration law firm, concurs that a guilty plea, even absent a judgment of conviction, could prove problematic.
Authorities “will typically consider it a conviction for immigration purposes … if the person says, ‘I committed the act,’” York says.