Defense attorneys should be aware that an application for a conditional discharge, a conditional dismissal or pretrial intervention (PTI) in Superior Court is a once-in-a-lifetime opportunity. New Jersey defendants are entitled to only one diversion from the criminal justice system. Using a diversionary program usually provides the defendant with a positive result in his case. Upon completion of the term of the diversion, completion of community services or other conditions imposed by the court and upon payment of all court fees, the charges are dismissed. Six months thereafter, the defendant can seek an expungement of the arrest and related charges. Attorneys should also know that an application for a conditional discharge or conditional dismissal can be made before, after or even during a trial. With this in mind, some attorneys will quickly take the path of least resistance in a drug case and seek a conditional discharge at the earliest possible moment in the case. Notwithstanding their ethical duties to their client, some attorneys never file a motion to suppress, properly review discovery, or even try the case when their client is eligible for a conditional discharge. Sure, the conditional discharge option provides an easy, virtually guaranteed result. But is a conditional discharge/dismissal always the best route? Imagine for a second that controversial football
player Ray Rice had been your client before he was drafted to the National Football League (NFL), and before he knocked his girlfriend out in an Atlantic City hotel elevator. If you had represented him as a teenager on a drug paraphernalia charge and negotiated a conditional discharge for him, he would not have been eligible later in life for pretrial intervention, an option that may have well saved him from a jail term. Obviously, if after careful review of a client's case, you determine that any motions to suppress (MTS) would be frivolous or without merit, perhaps then you could discuss plea offers with the prosecutor. If facts or case law support a reasonable MTS, then by all means comply with your duty of zealous advocacy for your client and make your motion. Even if your motion is denied or you lose at trial, you may still make application on your client's behalf for a conditional discharge. N.J.S.A. 2C:36A1(2) provides that a defendant may be placed on supervisory treatment either after a plea of guilty or finding of guilty. Familiarity with your judge's prior rulings regarding his/her willingness to grant a conditional discharge application post-trial, and after a finding of guilty, would be of tremendous assistance in this decision-making process. Another alternative is that you may forgo your motions and waive your right to a trial in order to make a straight application for the conditional discharge/ dismissal program and eliminate the problem instantly. The first time people are handcuffed and arrested can be an extremely traumatizing experience. Quite often, defendants do not want to go to court and present their defense. Rather, they insist on making the whole thing disappear as quickly as possible. As a defense attorney, it is of critical importance to make certain your client understands that once he uses his "get out of jail free card," he will never have another one for the remainder of his life; at least as far as New Jersey is concerned. Invest a considerable amount of time and effort to explain to your client the direct and collateral consequences of availing himself of the diversionary programs offered in New Jersey. Here's an alternative that may appeal to the interests of your client's career, or more importantly, his freedom. Plead your client guilty to the disorderly persons' offenses (DP) or petty disorderly persons' offenses (PDP) that he is charged with, pay a fine and forever give up his/her use of the conditional discharge/dismissal program. As far as his/her record is concerned, five years will have to pass until the DP or PDP can be expunged. However, if your client is ever charged with a serious criminal offense later in life, PTI will still be an option. Lose one battle, but win the war. Under N.J.S.A. 2C:43-12(a), a defendant is not eligible to make application for PTI if he/ she has been previously convicted of a crime and under 2C:43-12(g), defendants are not eligible if they have already participated in any diversionary
program. What constitutes a crime? N.J.S.A. 2C:14 (a), defines a crime as an offense for which a sentence of imprisonment in excess of six months is authorized. Crimes are designated as being of the first, second, third or fourth degree. Under subsection 2C:1-4(b) a DP, as well as a PDP, are not crimes within the meaning of the New Jersey Constitution. The maximum term of imprisonment for DPs and PDPs does not exceed six months. To clarify the aforementioned, if your client pleads to a DP or PDP, he may lose his eligibility for the conditional discharge or conditional dismissal program but still preserve his eligibility for PTI. Ray Rice used his once-in-a-lifetime "get out of jail free card" by applying for PTI and being admitted. Upon successful completion of the terms of his participation in that diversionary program, his charges will be dismissed. Had you represented him on the DP or PDP and encouraged him to avail himself of a diversionary program, PTI would never be an option. Admittedly, none of us has a crystal ball showing what the future holds for a client. If you can preserve your client's opportunity to take advantage of a diversionary program until he/she really needs it, then you must exhaust all possibilities before making application for that program. Use Ray Rice as an example every time a client asks you to provide him with options. Would Ray's career, life and future turned out differently had he not had the option of PTI? We will never know. ■
Peyrouton is a criminal-defense and immigration attorney in Union City.
JUNE 4, 2015 NJLJ.COM statewide legal authority since 1878 The High Cost of Getting Out of Jail Free
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