What is Conditional Dismissal?
As of January 4th, 2014, the State of New Jersey passed Assembly Bill 3598 creating a Conditional Dismissal program for New Jersey Municipal Court. The program is designed to allow for a conditional dismissal following a one year probationary term for eligible persons.
Those accused of certain offenses who have not previously been afforded any other diversion or been convicted of any prior crime or offense are eligible. The end result is that so long as the terms of the probation are not violated, the underlying charge will be dismissed and there will be no conviction on your record.
Who is eligible?
Eligible defendants includes those who have not been previously convicted of any petty disorderly persons offense, disorderly persons offense or crime under any law of the United States, New Jersey or any other state, and have not previously participated in a conditional discharge, supervisory treatment, or conditional dismissal program.
What charges qualify?
This is a municipal court program, so it will not apply to indictable crimes. Only certain disorderly persons offenses and petty disorderly persons offenses qualify. The Act excludes the following offenses from qualification:
organized criminal or gang activity;
an offense involving a continuing criminal business or enterprise;
a breach of the public trust by a public officer or employee;
an offense against an elderly, disabled or minor person;
an offense involving driving or operating a motor vehicle while under the influence of alcohol or drugs;
any disorderly persons offense involving drugs or drug paraphernalia [because such offenses are already eligible for dismissal under the conditional discharge program].
Does everyone who is eligible get in?
Not necessarily. Similar to the Pretrial Intervention Program (“PTI”), the Conditional Dismissal Program is initiated at the recommendation of the Prosecutor. However, if the Prosecutor refuses to recommend admission, the Court can still admit the defendant after considering a 10 factor test:
1. The nature of the circumstances of the offense;
2. The facts surrounding the commission of the offense;
3. The motivation, age, character and attitude of the defendant;
4. The desire of the complainant or victim to forego prosecution;
5. The needs and interests of the victim and the community;
6. The extent to which the defendant’s offense constitutes part of a continuing pattern of anti-social
7. Whether the offense is of an assaultive or violent nature, whether in the act itself or in the
possible injurious consequences of such behavior;
8. Whether applicant’s participation will adversely affect the prosecution of codefendants;
9. Whether diversion of the defendant from prosecution is consistent with the public interest; and
10. Any other factors deemed relevant by the Court.
How does it work?
Once a defendant has been recommended for admission by the Prosecutor to the Conditional Dismissal program and the Court consents, the defendant must either plead guilty or be found guilty to the charge. It is unclear whether the defendant must plead guilty to the original charge or whether the defendant can plead to an amended charge. Importantly, the defendant can plead not guilty, take the case to trial, lose, and still apply to the program.
Applicants must pay a $75 application fee plus all additional fees and assessments that the Court imposes. At that point, the applicant begins a one year probationary term where he or she cannot be arrested on any new charges and may be subject to certain conditions of probation such as drug screening, continued employment, or counseling. The Act allows the judge to extend the probationary period longer than one year for good cause. At the end of the probationary term the defendant will be brought back before the Court. If there were no violations of probation and no new arrests then the underlying charge will be dismissed.
What happens if you get arrested during the conditional dismissal period?
Unlike in a conditional discharge program, if you get arrested during a Conditional Dismissal, the case is reopened and goes directly to sentencing because you already pled guilty or were found guilty. The Court can sentence you up to 6 months in jail and impose fines up to $1,000 for each offense.
If I’m Eligible for a Conditional Dismissal Why Do I Need a Lawyer?
First, only a lawyer can properly evaluate the strength of the State’s case and determine whether motions, dismissal, or trial is a preferable option. Second, you can only use the Conditional Dismissal program once, and if you do, then you can never get a conditional discharge or apply for PTI. Third, the Conditional Dismissal program is brand new and the law is not clearly written in every aspect. Likely Prosecutors and Courts in different municipalities will apply the program differently. Some of those differences may benefit the defendant while others may not. A competent lawyer can advocate for you in terms of what charge to plea to, how to elicit a factual basis, and minimize the terms of the probationary period. Third, if the Prosecutor rejects your admission from the Conditional Dismissal program you will need the assistance of an attorney to convince the Judge to admit you to the program over the Prosecutor’s objection. Finally, even you successfully complete the program and the charge is dismissed there will still be a record of your arrest. An attorney can assist you in filing an expungement of the arrest 6 months after completion of the Conditional Dismissal program.
By Michael B. Roberts, Esq.