New Jersey Supreme Court Clarifies Marijuana Expungement Law

Courts can’t deny pretrial intervention just because the cannabis law is silent on conditional discharges.

By Dana DiFilippo, New Jersey Monitor

People who dodged conviction for minor drug offenses through a diversionary program for first-time offenders before state lawmakers decriminalized marijuana in 2021 can still be admitted to another diversionary program for new offenses, the New Jersey Supreme Court ruled Tuesday.

The unanimous decision was an effort by the state’s highest court to parse the intent of the expansive Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act, which decriminalized the simple possession of cannabis in New Jersey and mandated that prior marijuana convictions be automatically expunged from a person’s criminal record.

That law, though, doesn’t address how judges should handle people who received conditional discharges for marijuana offenses. Conditional discharge is a diversionary program for first-time offenders that allows them to avoid criminal prosecution and conviction for minor drug offenses if they complete certain conditions a judge orders, such as treatment.

That’s why lower courts in several cases made conflicting decisions for people with prior conditional discharges who committed new offenses and applied for pretrial intervention, another diversionary program meant for first-time offenders. People become ineligible for pretrial intervention if they have already participated in another diversionary program.

The Supreme Court consolidated the appeals in several cases:

• Richard Gomes was charged in Middlesex County in November 2020 with third- and fourth-degree assault by auto. Told he was ineligible for pretrial intervention because of a prior conditional discharge for marijuana possession, Gomes appealed, and a trial court overruled the ineligibility determination and allowed him to apply for pretrial intervention. The county prosecutor appealed.
• Moataz M. Sheira was charged in March 2021 in Morris County with third-degree possession of cocaine and heroin. Sheira also initially was declared ineligible for pretrial intervention because of his prior conditional discharge for marijuana possession. He asked for it anyway, and a trial court denied his request. Sheira appealed.

In both cases, the appeals court ruled that someone who received a prior conditional discharge of a disorderly persons offense for marijuana possession was ineligible for pretrial intervention.

But Superior Court Judge Jack Sabatino, who penned Tuesday’s decision while on temporary assignment to the Supreme Court, reversed the appellate rulings.

The reversal doesn’t mean people with a previous conditional discharge automatically are entitled to pretrial intervention, Sabatino said. But courts can’t deny pretrial intervention just because the cannabis law is silent on conditional discharges, he said.

“We stress that this is an exceptional situation involving a sweeping new statute that we have endeavored to harmonize sensibly with preexisting laws,” Sabatino wrote.

This story was first published by New Jersey Monitor.

Photo elements courtesy of rawpixel and Philip Steffan.