New Jersey-2010-A3053-Amended

An Act concerning conditional intervention for certain first offenders in municipal court, amending ¹N.J.S.2C:36A-1,¹ N.J.S.2C:43-12 ¹and R.S.53:1-15¹ and supplementing Title 2C of the New Jersey Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

¹1. N.J.S.2C:36A-1 is amended to read as follows:

2C:36A-1. Conditional discharge for certain first offenses; expunging of records. a. Whenever any person who has not previously been convicted of any offense under section 20 of P.L.1970, c.226 (C.24:21-20), or a disorderly persons or petty disorderly persons offense defined in chapter 35 or 36 of this title or, subsequent to the effective date of this title, under any law of the United States, this State or any other state relating to marijuana, or stimulant, depressant, or hallucinogenic drugs, is charged with or convicted of any disorderly persons offense or petty disorderly persons offense under chapter 35 or 36 of this title, the court upon notice to the prosecutor and subject to subsection c. of this section, may on motion of the defendant or the court:

(1) Suspend further proceedings and with the consent of the person after reference to the State Bureau of Identification criminal history record information files, place him under supervisory treatment upon such reasonable terms and conditions as it may require; or

b. In no event shall the court require as a term or condition of supervisory treatment under this section, referral to any residential treatment facility for a period exceeding the maximum period of confinement prescribed by law for the offense for which the individual has been charged or convicted, nor shall any term of supervisory treatment imposed under this subsection exceed a period of three years. If a person is placed under supervisory treatment under this section after a plea of guilty or finding of guilt, the court as a term and condition of supervisory treatment shall suspend the person's driving privileges for a period to be fixed by the court at not less than six months or more than two years unless the court finds compelling circumstances warranting an exception.
For the purposes of this subsection, compelling circumstances warranting an exception exist if the suspension of the person's driving privileges will result in extreme hardship and alternative means of transportation are not available. In the case of a person who at the time of placement under supervisory treatment under this section is less than 17 years of age, the period of suspension of driving privileges authorized herein, including a suspension of the privilege of operating a motorized bicycle, shall commence on the day the person is placed on supervisory treatment and shall run for a period as fixed by the court of not less than six months or more than two years after the day the person reaches the age of 17 years.

If the driving privilege of a person is under revocation, suspension, or postponement for a violation of this title or Title 39 of the Revised Statutes at the time of the person's placement on supervisory treatment under this section, the revocation, suspension or postponement period imposed herein shall commence as of the date of the termination of the existing revocation, suspension or postponement. The court which places a person on supervisory treatment under this section shall collect and forward the person's driver's license to the New Jersey Motor Vehicle Commission and file an appropriate report with the commission in accordance with the procedure set forth in N.J.S.2C:35-16. The court shall also inform the person of the penalties for operating a motor vehicle during the period of license suspension or postponement as required in N.J.S.2C:35-16.

Upon violation of a term or condition of supervisory treatment the court may enter a judgment of conviction and proceed as otherwise provided, or where there has been no plea of guilty or finding of guilty, resume proceedings. Upon fulfillment of the terms and conditions of supervisory treatment the court shall terminate the supervisory treatment and dismiss the proceedings against him. Termination of supervisory treatment and dismissal under this section shall be without court adjudication of guilt and shall not be deemed a conviction for purposes of disqualifications or disabilities, if any, imposed by law upon conviction of a crime or disorderly persons offense but shall be reported by the clerk of the court to the State Bureau of Identification criminal history record information files. Termination of supervisory treatment and dismissal under this section may occur only once with respect to any person. Imposition of supervisory treatment under this section shall not be deemed a conviction for the purposes of determining whether a second or subsequent offense has occurred under section 29 of P.L.1970, c.226 (C.24:21-29), chapter 35 or 36 of this title or any law of this State.

c. Proceedings under this section shall not be available to any defendant unless the court in its discretion concludes that:

(1) The defendant's continued presence in the community, or in a civil treatment center or program, will not pose a danger to the community; or

(2) That the terms and conditions of supervisory treatment will be adequate to protect the public and will benefit the defendant by serving to correct any dependence on or use of controlled substances which he may manifest; and

(3) The person has not previously received supervisory treatment under section 27 of P.L.1970, c.226 (C.24:21-27), N.J.S.2C:43-12, or the provisions of this chapter. If the person previously participated in the municipal court conditional intervention program established pursuant to section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill) proceedings under this section shall be available to the person only upon consent of the prosecutor.

d. A person seeking conditional discharge pursuant to this section shall pay to the court a fee of $75. The court shall forward all money collected under this subsection to the treasurer of the county in which the court is located. This money shall be used to defray the cost of juror compensation within that county. A person may apply for a waiver of this fee, by reason of poverty, pursuant to the Rules Governing the Courts of the State of New Jersey. Of the moneys collected under this subsection, $30 of each fee shall be deposited in the temporary reserve fund created by section 25 of P.L.1993, c.275. After December 31, 1994, the $75 fee shall be paid to the court, for use by the State.¹

(cf: P.L. 2008, c.84, s.1)

¹[1.] 2.¹ N.J.S.2C:43-12 is amended to read as follows:

2C:43-12. Supervisory Treatment--Pretrial Intervention. a. Public policy. The purpose of sections 2C:43-12 through 2C:43-22 of this chapter is to effectuate a Statewide program of Pretrial Intervention. It is the policy of the State of New Jersey that supervisory treatment should ordinarily be limited to persons who have not previously been convicted of any criminal offense under the laws of New Jersey, or under any criminal law of the United States, or any other state when supervisory treatment would:

(1) Provide applicants, on an equal basis, with opportunities to avoid ordinary prosecution by receiving early rehabilitative services or supervision, when such services or supervision can reasonably be expected to deter future criminal behavior by an applicant, and when there is apparent causal connection between the offense charged and the rehabilitative or supervisory need, without which cause both the alleged offense and the need to prosecute might not have occurred; or

(2) Provide an alternative to prosecution for applicants who might be harmed by the imposition of criminal sanctions as presently administered, when such an alternative can be expected to serve as sufficient sanction to deter criminal conduct; or

(3) Provide a mechanism for permitting the least burdensome form of prosecution possible for defendants charged with "victimless" offenses, other than defendants who were public officers or employees charged with offenses that involved or touched their office or employment; or

(4) Provide assistance to criminal calendars in order to focus expenditure of criminal justice resources on matters involving serious criminality and severe correctional problems; or

(5) Provide deterrence of future criminal or disorderly behavior by an applicant in a program of supervisory treatment.

b. Admission of an applicant into a program of supervisory treatment shall be measured according to the applicant's amenability to correction, responsiveness to rehabilitation and the nature of the offense. There shall be a presumption against admission into a program of supervisory treatment for a defendant who was a public officer or employee whose offense involved or touched upon his public office or employment.

c. The decision and reasons therefor made by the designated judges (or assignment judges), prosecutors and program directors in granting or denying applications for supervisory treatment, in recommending and ordering termination from the program or dismissal of charges, in all cases shall be reduced to writing and disclosed to the applicant.

d. If an applicant desires to challenge the decision of the prosecutor or program director not to recommend enrollment in a program of supervisory treatment the proceedings prescribed under section 14 shall be followed.

e. Referral. At any time prior to trial but after the filing of a criminal complaint, or the filing of an accusation or the return of an indictment, with the consent of the prosecutor and upon written recommendation of the program director, the assignment judge or a judge designated by him may postpone all further proceedings against an applicant and refer said applicant to a program of supervisory treatment approved by the Supreme Court. Prosecutors and program directors shall consider in formulating their recommendation of an applicant's participation in a supervisory treatment program, among others, the following criteria:

(1) The nature of the offense;

(2) The facts of the case;

(3) The motivation and age of the defendant;

(4) The desire of the complainant or victim to forego prosecution;

(5) The existence of personal problems and character traits which may be related to the applicant's crime and for which services are unavailable within the criminal justice system, or which may be provided more effectively through supervisory treatment and the probability that the causes of criminal behavior can be controlled by proper treatment;

(6) The likelihood that the applicant's crime is related to a condition or situation that would be conducive to change through his participation in supervisory treatment;

(7) The needs and interests of the victim and society;

(8) The extent to which the applicant's crime constitutes part of a continuing pattern of anti-social behavior;

(9) The applicant's record of criminal and penal violations and the extent to which he may present a substantial danger to others;

(10) Whether or not the crime is of an assaultive or violent nature, whether in the criminal act itself or in the possible injurious consequences of such behavior;

(11) Consideration of whether or not prosecution would exacerbate the social problem that led to the applicant's criminal act;

(12) The history of the use of physical violence toward others;

(13) Any involvement of the applicant with organized crime;

(14) Whether or not the crime is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution;

(15) Whether or not the applicant's involvement with other people in the crime charged or in other crime is such that the interest of the State would be best served by processing his case through traditional criminal justice system procedures;

(16) Whether or not the applicant's participation in pretrial intervention will adversely affect the prosecution of codefendants; and

(17) Whether or not the harm done to society by abandoning criminal prosecution would outweigh the benefits to society from channeling an offender into a supervisory treatment program.

f. Review of Supervisory Treatment Applications; Procedure Upon Denial. Each applicant for supervisory treatment shall be entitled to full and fair consideration of his application. If an application is denied, the program director or the prosecutor shall precisely state his findings and conclusion which shall include the facts upon which the application is based and the reasons offered for the denial. If the applicant desires to challenge the decision of a program director not to recommend, or of a prosecutor not to consent to, enrollment into a supervisory treatment program, a motion shall be filed before the designated judge (or assignment judge) authorized pursuant to the rules of court to enter orders.

g. Limitations.

[Supervisory] (1) Except as provided in paragraph (2) of this subsection, supervisory treatment may occur only once with respect to any defendant and any person who has previously received supervisory treatment under section 27 of P.L.1970, c.226 (C.24:21-27), shall not be eligible for supervisory treatment under this section.

(2) (a) Any person who has previously participated in a municipal court conditional intervention program pursuant to section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill) shall not be eligible for supervisory treatment under this section for a period of one year following completion of the ¹municipal court¹ conditional intervention program. Subsequent to the one-year period, ¹[there shall be a rebuttable presumption that]¹ such person shall ¹[not]¹ be eligible for supervisory treatment under this section ¹only with the consent of the municipal prosecutor¹.

(b) However, supervisory treatment, as provided herein, shall be available to a defendant irrespective of whether the defendant contests his guilt of the charge or charges against him.

h. Termination. Termination of supervisory treatment under this section shall be immediately reported to the assignment judge of the county who shall forward such information to the Administrative Director of the Courts.

i. Appointment of Program Directors; Authorized Referrals. Programs of supervisory treatment and appointment of the program directors require approval by the Supreme Court with the consent of the assignment judge and prosecutor. Referrals of participants from supervisory treatment programs may be to any public or private office or agency, including but not limited to, programs within the probation service of the court, offering counseling or any other social service likely to aid in the rehabilitation of the participant and to deter the commission of other offenses.

j. Health Care Professional Licensing Board Notification. The program director shall promptly notify the State Board of Medical Examiners when a State licensed physician or podiatrist has been enrolled in a supervisory treatment program after he has been charged with an offense involving drugs or alcohol.

(cf: P.L.2007, c.49, s.9)

¹3. R.S.53:1-15 is amended to read as follows:

53:1-15. a. The sheriffs, chiefs of police, members of the State Police and any other law enforcement agencies and officers shall, immediately upon the arrest of any person for an indictable offense, or for any of the grounds specified in paragraph (1), (2), (3) or (4) of subsection a. of section 5 of P.L.1991, c.261 (C.2C:25-21) or of any person believed to be wanted for an indictable offense, or believed to be an habitual criminal, or within a reasonable time after the filing of a complaint by a law enforcement officer charging any person with an indictable offense, or upon the arrest of any person for shoplifting, pursuant to N.J.S.2C:20-11, or upon the arrest of any person for prostitution, pursuant to N.J.S.2C:34-1, or the conviction of any other person charged with a nonindictable offense, where the identity of the person charged is in question, take the fingerprints of such person, according to the fingerprint system of identification established by the Superintendent of State Police and on the forms prescribed, and forward without delay two copies or more of the same, together with photographs and such other descriptions as may be required and with a history of the offense committed, to the State Bureau of Identification.

Such sheriffs, chiefs of police, members of the State Police and any other law enforcement agencies and officers shall also take the fingerprints, descriptions and such other information as may be required of unknown dead persons and as required by section 2 of P.L.1982, c.79 (C.2A:4A-61) of juveniles adjudicated delinquent and shall forward same to the State Bureau of Identification.

b. (1) Any person charged in a complaint filed by a law enforcement officer with an indictable offense, who has not been arrested, or any person charged in an indictment, who has not been arrested, or any person convicted of assault or harassment constituting domestic violence as defined in section 3 of P.L.1991, c.261 (C.2C:25-19), or any person against whom a final order has been entered in any domestic violence matter pursuant to the provisions of section 13 of P.L.1991, c.261 (C.2C:25-29) shall submit himself to the identification procedures provided herein either on the date of any court appearance or upon written request of the appropriate law enforcement agency within a reasonable time after the filing of the complaint.

(2) Any person applying for participation in the municipal court conditional intervention program pursuant to P.L. , c. (C. )(pending before the Legislature as this bill) shall submit himself to the identification procedures provided in this section as a condition of admission into the program. However, an applicant shall not be required to submit to a second or subsequent identification procedure as set forth herein if he has previously done so.

c. Any person who refuses to submit to such identification procedures shall be a disorderly person.¹

(cf: P.L.1999, c.288, s.1)

¹[2.] 4.¹ (New section) Conditional intervention in municipal courts for certain first offenses¹[; expunging of records]¹.

a. Whenever any person who has not previously been convicted of any disorderly persons or petty disorderly persons offense is charged with or convicted of any disorderly persons offense or petty disorderly persons offense, the ¹municipal¹ court upon notice to the ¹municipal¹ prosecutor and subject to subsection c. of this section, may on motion of the defendant or the court:

(1) Suspend further proceedings and with the consent of the person after reference to the State Bureau of Identification criminal history record information files, place him under such reasonable terms and conditions as it may require; or

(2) After plea of guilty or finding of guilty, and without entering a judgment of conviction, and with the consent of the person after proper reference to the State Bureau of Identification criminal history record information files, place him under such reasonable terms and conditions as it may require, or as otherwise provided by law, including but not limited to restitution; community service; drug and alcohol screening and counseling; anger management and other appropriate counseling; and an order restraining the defendant from entering the residence, property, school, or place of employment of the victim or third parties associated with the victim.

b. In no event shall the court require any terms or conditions under this section to exceed a period of one year. Upon violation of a term or condition the court may enter a judgment of conviction and proceed as otherwise provided, or where there has been no plea of guilty or finding of guilty, resume proceedings. Upon fulfillment of the terms and conditions of ¹municipal court¹ conditional intervention the court shall terminate the terms and conditions and dismiss the proceedings against ¹[him] the person¹. Termination of conditional intervention and dismissal under this section shall be without court adjudication of guilt and shall not be deemed a conviction for purposes of disqualifications or disabilities, if any, imposed by law upon conviction of a disorderly persons offense or petty disorderly persons offense but shall be reported by the clerk of the municipal court to the State Bureau of Identification criminal history record information files. Termination of conditional intervention and dismissal under this section may occur only once with respect to any person. Imposition of conditional intervention under this section shall not be deemed a conviction for the purposes of determining whether a second or subsequent offense has occurred under any law of this State.

c. Proceedings under this section shall not be available to any person unless the court in its discretion concludes that:

(1) The person has not participated previously in a program of conditional intervention in municipal court available pursuant to the provisions of this section; and

(2) The person has not participated previously in a program of conditional discharge available pursuant to N.J.S.2C:36A-1 or under section 27 of P.L.1970, c.226 (C.24:21-27); and

(3) The person has not completed previously a program of intensive supervision established pursuant to the Rules Governing the Courts of the State of New Jersey ¹and set forth in N.J.S.2C:43-12 et seq.¹; and

(4) The terms and conditions of conditional intervention will be adequate to protect the public; and

(5) The court is satisfied that the nature of the offense; the facts of the case; the motivation and age of the defendant; and the desire of the complainant or victim to forego prosecution make it likely that the defendant would be conducive to change through his participation in conditional intervention.

d. ¹A defendant shall not be eligible for participation in the municipal court conditional intervention program if the offense for which the person is charged involved: (1) organized criminal or gang activity; (2) a continuing criminal business or enterprise; (3) a breach of the public trust by an elected public officer or employee whose offense involved or touched upon his elected office or employment; (4) a disorderly persons offense or petty disorderly persons offense under chapter 35 or 36 of Title 2C; (5) domestic violence as defined by subsection a. of section 3 of P.L. 1991, c.261 (C.2C:25-19); or (6) animal cruelty as provided in N.J.S.A. 4:22-15 et seq.

e.¹ The terms and duration of the ¹person's participation in the municipal court¹ conditional intervention ¹program¹ shall be set forth in writing, signed by the municipal prosecutor and agreed to and signed by the participant. If the participant is represented by counsel, defense counsel shall also sign the agreement. Each order of conditional intervention shall be filed with the municipal clerk.

¹[e.] f.¹ A person ¹[seeking] applying for admission to the municipal court¹ conditional intervention ¹program¹ pursuant to ¹[this section] P.L. ,c. (C. )(pending before the Legislature as this bill)¹ shall pay to the court ¹[a] an application¹ fee of ¹at least¹$75 ¹not to exceed $500. An applicant who pays the application fee shall not be required to pay any additional fines, fees or assessments that would have been imposed for a conviction of the offense charged, unless the applicant does not complete the program and is convicted of the charge¹. A person may apply for a waiver ¹or reduction¹ of this fee, by reason of poverty ¹or extreme financial hardship¹, pursuant to the Rules Governing the Courts of the State of New Jersey. ¹The court shall forward all monies collected pursuant to P.L. ,c. (C. )(pending before the Legislature as this bill) to the treasurer of the municipality in which the court is located.¹

¹[3.] 5.¹ (New section) The Supreme Court may adopt rules concerning conditional intervention in municipal courts in accordance with the procedures set forth in subsection g. of N.J.S.2C:43-12 and section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill).

¹[4.] 6.¹ This act shall take effect on the 60th day after enactment.