In State v. Richard Gomes (A-64/65-21/087192) (Decided February 14, 2023), the Supreme Court of New Jersey unanimously held that defendants who received conditional discharges for marijuana offenses before the 2021 adoption of the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA), are not statutorily ineligible for admission into the pretrial intervention (PTI) program for new offenses. Under the court’s holding, prosecutors and reviewing courts must consider the merits of their PTI applications, without regard to the existence or circumstances of the earlier marijuana-related conditional discharges.
Facts of State v. Gomes
Defendants Richard Gomes and Moataz M. Sheira both received a previous conditional discharge stemming from a possessory marijuana offense that is no longer unlawful in New Jersey after CREAMMA. They were both charged with new offenses and applied for admission into PTI.
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.
Citing the PTI statute, a trial court concluded Sheira was statutorily ineligible for PTI because of his previous conditional discharge for marijuana possession. However, a different trial court reached the contrary conclusion as to Gomes. Applying the “one diversion only” general limitation of the PTI statute and the terms of expungement statutes enacted before CREAMMA, the Appellate Division held that the defendants were statutorily barred from PTI eligibility.
“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).”
NJ Supreme Court’s Decision in State v. Gomes
The New Jersey Supreme Court reversed. It held that “persons who received pre-CREAMMA conditional discharges for specified marijuana offenses — just like persons who had pre-CREAMMA convictions for those marijuana offenses — are no longer categorically precluded from future admission into PTI.” Going forward, prosecutors and reviewing courts must consider the merits of their PTI applications, without regard to the existence or circumstances of the earlier marijuana-related conditional discharges.
The New Jersey Supreme Court emphasized that its decision harmonizes CREAMMA and its “manifest legislative intent” with the pre-existing general language of the PTI and expungement statutes. “Most notably, we carry out the Legislature’s command in CREAMMA to apply its reforms to ‘any case’ that arose before its enactment,” the court wrote.
In reaching its decision, the court further noted that persons who had previous marijuana convictions are allowed to apply for PTI when charged with new offenses. “There is nothing in the text or enactment history of CREAMMA that supports a legislative intent to deprive persons with previous conditional discharges of that same opportunity,” the court explained. The New Jersey Supreme Court emphasized that its holding does not eviscerate the “one diversion only” general mandate of the PTI statute in other non-marijuana contexts. Going forward, the provision continues to apply for such other matters not within CREAMMA’s ambit. It went on to further explain that its reversal of the Appellate Division’s decision does not automatically entitle a PTI applicant with a previous marijuana conditional discharge to be admitted into the program. “We stress that this is an exceptional situation involving a sweeping new statute that we have endeavored to harmonize sensibly with preexisting laws,” the court wrote.