The Supreme Court of New Jersey is poised to consider one of several key criminal law issues that has arisen in the wake of the state’s efforts to expunge low-level marijuana convictions. The key issue before the court in the consolidated cases of State v. Richard Gomes and State v. Moataz M. Sheira is whether a defendant may be admitted into pretrial intervention (PTI) where they have a prior conditional discharge for marijuana charges.
Facts of the Cases
Each of the defendants has a disorderly persons offense for a prior charge for possession of marijuana, which was dismissed via conditional discharge under N.J.S.A. 2C:36A-1. In each case, dismissal occurred following successful completion of a diversionary treatment program.
Pursuant to the conditional discharge statute, placement in supervisory treatment “may occur only once” and a defendant shall not be placed in a conditional discharge program unless a court concludes “[t]he person has not previously received supervisory treatment” under either the PTI statute, the conditional discharge statute, or N.J.S.A. 24:21-27, the predecessor of N.J.S.A. 2C:36A-1.
In 2021, New Jersey enacted the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA). Among other cannabis reforms, the law provides that any person who “[p]rior to the effective date” of the statute was in “possession of [fifty] grams or less of marijuana . . . is a disorderly person[.]” With respect to expungements, CREAMMA provides that “any case that, prior to the effective date, includes . . . any disorderly persons offense or petty disorderly persons offense subject to conditional discharge pursuant to N.J.S.[A.] 2C:36A-1, shall be expunged by operation of law, and any remaining sentence, ongoing supervision, or . . . financial assessment . . . shall be vacated by operation of law.”
Following the enactment of CREAMMA, each defendant was arrested on more serious charges and sought admission into the PTI program. Citing Sheira’s prior conditional discharge, a trial court judge determined that he was barred from the program. However, a different judge ruled that Gomes was eligible. Both decisions were appealed, and the Appellate Division consolidated the cases with those of other defendants raising the same issue.
Appellate Division’s Decision
The Appellate Division found that despite CREAMMA, the defendants are still limited to participating in one diversionary program. “CREAMMA did not amend, reference, or supersede the conditional discharge, PTI, or expungement statutes,” the court held.
In reaching its decision, the Appellate Division emphasized that expungement provision in CREAMMA is “neither inconsistent with, nor repugnant to, the Legislature’s earlier enacted rule permitting only one prior diversionary placement, including conditional discharges under [New Jersey Statutes Annotated] 2C:36A-1(c)(3).”
Issues Before the New Jersey Supreme Court
The New Jersey Supreme Court agreed to consider the following question: “Is a defendant with a prior conditional discharge for a disorderly persons offense of marijuana possession eligible for the Pretrial Intervention program if the prior offense was expunged under the Cannabis Regulatory, Enforcement, Assistance and Marketplace Modernization Act?”
In his brief, Sheira argued that CREAMMA’s broad expungement provision “demonstrates the clear legislative intent to eliminate the legal consequences suffered by defendants with low-level marijuana convictions by restoring them to their position prior to the commission of an act that is no longer unlawful.” Meanwhile, Gomes argued that if the Appellate Division’s decision “remains binding on lower courts, it would disqualify a significantly higher proportion of Black PTI applicants than similarly situated white applicants solely because of the discriminatory enforcement of the antiquated law.” Oral arguments were held on January 3, 2023, and a decision is expected in the coming months.