SENATE, No. 2634

STATE OF NEW JERSEY

214th LEGISLATURE

 

INTRODUCED JANUARY 11, 2011

 


 

Sponsored by:

Senator  SHIRLEY K. TURNER

District 15 (Mercer)

 

 

 

 

SYNOPSIS

     Establishes conditional intervention program in municipal court for certain first-time offenders.

 

CURRENT VERSION OF TEXT

     As introduced.

  


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

 

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

 

     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 received conditional intervention in municipal court under section 2 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 conditional intervention program.  Subsequent to the one-year period, there shall be a rebuttable presumption that such person shall not be eligible for supervisory treatment under this section.

     (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)

 

     2.    (New section)  Conditional intervention in municipal courts for certain first offenses; expunging of records.

     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 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 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 conditional intervention the court shall terminate the terms and conditions and dismiss the proceedings against him. 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;  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.    The terms and duration of the conditional intervention 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. 

     e.     A person seeking conditional intervention pursuant to this section shall pay to the court a fee of $75.  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. 

 

     3.    (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).

 

     4.    This act shall take effect on the 60th day after enactment.


STATEMENT

 

     This bill creates an alternative to sentencing for certain first-time offenders in municipal court who are charged with a disorderly persons offense or a petty disorderly persons offense.

     The provisions of the bill are patterned closely on the provisions of N.J.S.A.2C:36A-1 which permits certain first-time drug offenders to have proceedings suspended or to have no judgment of conviction entered if they complete certain drug treatment or meet other conditions imposed by the court.  N.J.S.A.2C:36A-1 is a continuation of a provision previously found in Title 24 of the Revised Statutes at N.J.S.24:21-27.

     The bill provides that a municipal judge, upon notice to the prosecutor and subject to certain findings, may suspend further proceedings and place the first-time offender under such reasonable terms and conditions as the judge may require. Alternatively, after a plea of guilty or finding of guilty, and without entering a judgment of conviction, the municipal judge may place the first-time offender under such reasonable terms and conditions. The terms and conditions include but are 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.

     If the offender violates a term or condition then the court may enter a judgment of conviction and proceed or, where there has been no plea of guilty or finding of guilty, resume proceedings. Upon fulfillment of the terms and conditions of conditional intervention the court would terminate the program and dismiss the proceedings. Termination of conditional intervention and dismissal would not be deemed a conviction for purposes of disqualifications or disabilities. Termination of conditional intervention and dismissal could be granted only once to any person. A person seeking conditional intervention as established by the bill cannot have participated previously in a program of conditional discharge for drug offenses or in a program of intensive supervision for indictable offenses.

     Currently, persons who are charged with an indictable offense (a crime of the first, second, third or fourth degree) may be eligible for  pretrial intervention (“PTI”) pursuant to N.J.S.A.2C:43-12 et seq.  The bill provides that a person who received conditional intervention in municipal court pursuant to the bill and is then charged with an indictable offense would not be eligible for PTI for a period of one year following completion of the conditional intervention program.  Subsequent to the one-year period, there would be a rebuttable presumption that the person would not be eligible for PTI.

     Before authorizing conditional intervention in municipal court, the municipal judge must find that the terms and conditions of conditional intervention will be adequate to protect the public.  Additionally the judge must find 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 participation in conditional intervention.

     The sponsor notes that a person who is charged with an indictable offense has the possible benefit of PTI.  This bill provides a similar alternative for a first-time offender who is charged with a lesser, non-indictable disorderly persons or petty disorderly persons offense in municipal court.