Conditional Dismissal is a much welcomed diversionary program which was signed into law by Governor Chris Christie (R) as P.L. 2013 c. 158 on September 6, 2013, and went into effective January 4, 2014. It allows those who qualify, charged with disorderly persons or petty disorderly persons offenses in municipal court, an opportunity to keep a clean record provided they successfully complete a 1 year period of probation without any additional criminal convictions. This is a perfect compliment to the Conditional Discharge Program, under N.J.S.A. 2C:36A-1, which works similarly, but applies only to drug offenses, and the Pre-Trial Intervention Program under N.J.S.A. 2C:43-12 which applies to indictable offenses. In a time when the Administrative Office of the Courts, and the New Jersey Attorney General strongly discourage municipal prosecutors from downgrading disorderly persons offenses to non-criminal municipal ordinances, this is a valuable option for prosecutors and defense attorneys resolving cases.
Over the course of my career as a New Jersey criminal defense attorney, I have seen trends in how laws are implemented, and I have seen these trends come and go. There was a time, years ago, when I could walk into municipal court with a client charged with a disorderly persons offense, and if there were no aggravating facts, I stood a better than average chance of getting the offense downgraded to a non-criminal ordinance just for the sake of resolving the case quickly. If my client also had no prior record, it was practically a guarantee I would be able to get the charge dismissed or downgraded. Several years ago, that changed. Presently, even representing a defendant with no prior record, unless I can establish a strong factual or legal argument which genuinely calls into question whether a prosecutor can sustain a conviction, the chances of resolving a criminal matter in municipal court with a downgrade are extremely slim. As a result, prior to the adoption of the Conditional Dismissal, defendants and their attorneys were left between a rock and a hard place. Even prosecutors didn’t like the idea of convicting a first time offender who they felt maybe deserved a break. Attorneys often commiserated about the inequity of drug offenders getting a break with Conditional Discharge, and those charged with even more serious indictable offenses finding a path to a clean record with PTI, but those charged with minor disorderly persons or petty disorderly persons offenses having to take it on the chin. But what to do? There were few options, and I had to either roll the dice in trial for cases that had less than a strong defense and hope for the best, or become very creative. One time, I actually argued that my client’s charge was more serious than originally contemplated, and asked the municipal prosecutor to send the case up to the county prosecutor’s office for review. It was my hope that the county prosecutor would agree that it was actually an indictable offense, which would allow my client to then qualify for Pre-Trial Intervention. A risky strategy to be sure, but one that actually worked. Going through contortions such as those was simply not a viable solution to handle an entire case load, and not even an option for most cases. Now, thanks to some common sense and a practical approach to what was universally perceived as a problem, we have a solution, making such extraordinary efforts as described above unnecessary.