Thursday, November 8, 2018

2C new expungement statute


2C new expungement statute

     1.    N.J.S.2C:52-2 is amended to read as follows:

Indictable offenses.
     2C:52-2. Indictable Offenses.
     a.     In all cases, except as herein provided, a person may present an expungement application to the Superior Court pursuant to this section if:
     the person has been convicted of one crime under the laws of this State, and does not otherwise have any prior or subsequent conviction for another crime, whether within this State or any other jurisdiction; or
     the person has been convicted of one crime and less than four disorderly persons or petty disorderly persons offenses under the laws of this State, and does not otherwise have any prior or subsequent conviction for another crime, or any prior or subsequent conviction for another disorderly persons or petty disorderly persons offense such that the total number of convictions for disorderly persons and petty disorderly persons offenses would exceed three, whether any such crime or offense conviction was within this State or any other jurisdiction; or
     the person has been convicted of multiple crimes or a combination of one or more crimes and one or more disorderly persons or petty disorderly persons offenses under the laws of this State, all of which are listed in a single judgment of conviction, and does not otherwise have any prior or subsequent conviction for another crime or offense in addition to those convictions included in the expungement application, whether any such conviction was within this State or any other jurisdiction; or
     the person has been convicted of multiple crimes or a combination of one or more crimes and one or more disorderly persons or petty disorderly persons offenses under the laws of this State, which crimes or combination of crimes and offenses were interdependent or closely related in circumstances  and were committed as part of a sequence of events that took place within a comparatively short period of time, regardless of the date of conviction or sentencing for each individual crime or offense, and the person does not otherwise  have any prior or subsequent conviction for another crime or offense in addition to those convictions included in the expungement application, whether any such conviction was within this State or any other jurisdiction. 
     The person, if eligible, may present the expungement application after the expiration of a period of six years from the date of his most recent conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later. The term “fine” as used herein and throughout this section means and includes any fine, restitution, and other court-ordered financial assessment imposed by the court as part of the sentence for the conviction, for which payment of restitution takes precedence in accordance with chapter 46 of Title 2C of the New Jersey Statutes.  The person shall submit the expungement application to the Superior Court in the county in which the conviction for the crime was adjudged, which contains a separate, duly verified petition as provided in N.J.S.2C:52-7 for each conviction sought to be expunged, praying that the conviction, or convictions if applicable, and all records and information pertaining thereto be expunged.  The petition for each conviction appended to an application shall comply with the requirements set forth in N.J.S.2C:52-1 et seq.
     Notwithstanding the provisions concerning the six-year time requirement, if a fine which is currently subject to collection under the comprehensive enforcement program established pursuant to P.L.1995, c.9 (C.2B:19-1 et al.) is not yet satisfied due to reasons other than willful noncompliance, but the time requirement of six years is otherwise satisfied, the person may submit the expungement application and the court may grant an expungement, provided, however, that if expungement is granted under this paragraph, the court shall provide for the continued collection of any outstanding amount owed that is necessary to satisfy the fine or the entry of civil judgment for the outstanding amount in accordance with section 8 of P.L.2017, c.244 (C.2C:52-23.1). 
     Additionally, an application may be filed and presented, and the court may grant an expungement pursuant to this section, although less than six years have expired in accordance with the time requirements when the court finds:
     (1)   the fine is satisfied but less than six years have expired from the date of satisfaction, and the time requirement of six years is otherwise satisfied, and the court finds that the person substantially complied with any payment plan ordered pursuant to N.J.S.2C:46-1 et seq., or could not do so due to compelling circumstances affecting his ability to satisfy the fine; or
     (2)   at least five but less than six years have expired from the date of the most recent conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later; and
     the person has not been otherwise convicted of a crime, disorderly persons offense, or petty disorderly persons offense since the time of the most recent conviction; and the court finds in its discretion that expungement is in the public interest, giving due consideration to the nature of the offense or offenses, and the applicant's character and conduct since the conviction or convictions.
     In determining whether compelling circumstances exist for the purposes of paragraph (1) of this subsection, a court may consider the amount of the fine or fines imposed, the person's age at the time of the offense or offenses, the person's financial condition and other relevant circumstances regarding the person's ability to pay.
     b.    Records of conviction pursuant to statutes repealed by this Code for the crimes of murder, manslaughter, treason, anarchy, kidnapping, rape, forcible sodomy, arson, perjury, false swearing, robbery, embracery, or a conspiracy or any attempt to commit any of the foregoing, or aiding, assisting or concealing persons accused of the foregoing crimes, shall not be expunged.
     Records of conviction for the following crimes specified in the New Jersey Code of Criminal Justice shall not be subject to expungement: N.J.S.2C:11-1 et seq. (Criminal Homicide), except death by auto as specified in N.J.S.2C:11-5 and strict liability vehicular homicide as specified in section 1 of P.L.2017, c.165 (C.2C:11-5.3); N.J.S.2C:13-1 (Kidnapping); section 1 of P.L.1993, c.291 (C.2C:13-6) (Luring or Enticing); section 1 of P.L.2005, c.77 (C.2C:13-8) (Human Trafficking); N.J.S.2C:14-2 (Sexual Assault or Aggravated Sexual Assault); subsection a. of N.J.S.2C:14-3 (Aggravated Criminal Sexual Contact); if the victim is a minor, subsection b. of N.J.S.2C:14-3 (Criminal Sexual Contact); if the victim is a minor and the offender is not the parent of the victim, N.J.S.2C:13-2 (Criminal Restraint) or N.J.S.2C:13-3 (False Imprisonment); N.J.S.2C:15-1 (Robbery); N.J.S.2C:17-1 (Arson and Related Offenses); subsection a. of N.J.S.2C:24-4 (Endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child, or causing the child other harm); paragraph (4) of subsection b. of N.J.S.2C:24-4 (Photographing or filming a child in a prohibited sexual act or for portrayal in a sexually suggestive manner); paragraph (3) of subsection b. of N.J.S.2C:24-4 (Causing or permitting a child to engage in a prohibited sexual act or the simulation of an act, or to be portrayed in a sexually suggestive manner); subparagraph (a) of paragraph (5) of subsection b. of N.J.S.2C:24-4 (Distributing, possessing with intent to distribute or using a file-sharing program to store items depicting the sexual exploitation or abuse of a child); subparagraph (b) of paragraph (5) of subsection b. of N.J.S.2C:24-4 (Possessing or viewing items depicting the sexual exploitation or abuse of a child); section 8 of P.L.2017, c.141 (C.2C:24-4.1) (Leader of a child pornography network); N.J.S.2C:28-1 (Perjury); N.J.S.2C:28-2 (False Swearing); paragraph (4) of subsection b. of N.J.S.2C:34-1 (Knowingly promoting the prostitution of the actor's child); section 2 of P.L.2002, c.26 (C.2C:38-2) (Terrorism); subsection a. of section 3 of P.L.2002, c.26 (C.2C:38-3) (Producing or Possessing Chemical Weapons, Biological Agents or Nuclear or Radiological Devices); and conspiracies or attempts to commit such crimes.
     Records of conviction for any crime committed by a person holding any public office, position or employment, elective or appointive, under the government of this State or any agency or political subdivision thereof and any conspiracy or attempt to commit such a crime shall not be subject to expungement if the crime involved or touched such office, position or employment.
     c.     In the case of conviction for the sale or distribution of a controlled dangerous substance or possession thereof with intent to sell, expungement shall be denied except where the crimes involve:
     (1)   Marijuana, where the total quantity sold, distributed or possessed with intent to sell was less than one ounce;
     (2)   Hashish, where the total quantity sold, distributed or possessed with intent to sell was less than five grams; or
     (3)   Any controlled dangerous substance provided that the conviction is of the third or fourth degree, where the court finds that expungement is consistent with the public interest, giving due consideration to the nature of the offense and the petitioner's character and conduct since conviction.
     d.    In the case of a State licensed physician or podiatrist convicted of an offense involving drugs or alcohol or pursuant to section 14 or 15 of P.L.1989, c.300 (C.2C:21-20 or 2C:21-4.1), the court shall notify the State Board of Medical Examiners upon receipt of a petition for expungement of the conviction and records and information pertaining thereto.
 P.L.2017, CHAPTER 244, approved December 20, 2017
Senate, No. 3307

     2.    N.J.S.2C:52-3 is amended to read as follows:

Disorderly persons offenses and petty disorderly persons offenses.
     2C:52-3. Disorderly persons offenses and petty disorderly persons offenses.
     a.     Any person who has been convicted of one or more disorderly persons or petty disorderly persons offenses under the laws of this State who has not been convicted of any crime, whether within this State or any other jurisdiction, may present an expungement application to the Superior Court pursuant to this section.  Any person who has been convicted of one or more disorderly persons or petty disorderly persons offenses under the laws of this State who has also been convicted of  one or more crimes shall not be eligible to apply for an expungement pursuant to this section, but may present an expungement application to the Superior Court pursuant to N.J.S.2C:52-2.
     b.    Any person who has been convicted of one or more disorderly persons or petty disorderly persons offenses under the laws of this State who has not been convicted of any crime, whether within this State or any other jurisdiction, may present an expungement application to the Superior Court pursuant to this section if:
     the person has been convicted, under the laws of this State, on the same or separate occasions of no more than four disorderly persons offenses, no more than four petty disorderly persons offenses, or a combination of no more than four disorderly persons and petty disorderly persons offenses, and the person does not otherwise have any prior or subsequent conviction for a disorderly persons or petty disorderly persons offense, whether within this State or any other jurisdiction, such that the total number of convictions for disorderly persons and petty disorderly persons offenses would exceed four; or
     the person has been convicted of multiple disorderly persons offenses or multiple petty disorderly persons offenses under the laws of this State, or a combination of multiple disorderly persons and petty disorderly persons offenses under the laws of this State, which convictions were entered on the same day, and does not otherwise have any prior or subsequent conviction for another offense in addition to those convictions included in the expungement application, whether any such conviction was within this State or any other jurisdiction; or
     the person has been convicted of multiple disorderly persons offenses or multiple petty disorderly persons offenses under the laws of this State, or a combination of multiple disorderly persons and petty disorderly persons offenses under the laws of this State, which offenses or combination of offenses were interdependent or closely related in circumstances and were committed as part of a sequence of events that took place within a comparatively short period of time, regardless of the date of conviction or sentencing for each individual offense, and the person does not otherwise have any prior or subsequent conviction for another offense in addition to those convictions included in the expungement application, whether within this State or any other jurisdiction. 
     The person, if eligible, may present the expungement application after the expiration of a period of five years from the date of his most recent conviction, payment of fine, satisfactory completion of probation or release from incarceration, whichever is later.  The term “fine” as used herein and throughout this section means and includes any fine, restitution, and other court-ordered financial assessment imposed by the court as part of the sentence for the conviction, for which payment of restitution takes precedence in accordance with chapter 46 of Title 2C of the New Jersey Statutes.  The person shall submit the expungement application to the Superior Court in the county in which the most recent conviction for a disorderly persons or petty disorderly persons offense was adjudged, which contains a separate, duly verified petition as provided in N.J.S.2C:52-7 for each conviction sought to be expunged, praying that the conviction, or convictions if applicable, and all records and information pertaining thereto be expunged.  The petition for each conviction appended to an application shall comply with the requirements of N.J.S.2C:52-1 et seq.
     Notwithstanding the provisions of the five-year time requirement, an application may be filed and presented, and the court may grant an expungement pursuant to this section, when the court finds:
     (1)   the fine is satisfied but less than five years have expired from the date of satisfaction, and the five-year time requirement is otherwise satisfied, and the court finds that the person substantially complied with any payment plan ordered pursuant to N.J.S.2C:46-1 et seq., or could not do so due to compelling circumstances affecting his ability to satisfy the fine; or
     (2)   at least three but less than five years have expired from the date of the most recent conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later; and 
     the person has not been otherwise convicted of a crime, disorderly persons offense, or petty disorderly persons offense since the time of the most recent conviction; and the court finds in its discretion that expungement is in the public interest, giving due consideration to the nature of the offense or offenses, and the applicant's character and conduct since the conviction or convictions.
     In determining whether compelling circumstances exist for the purposes of paragraph (1) of this subsection, a court may consider the amount of the fine or fines imposed, the person's age at the time of the offense or offenses, the person's financial condition and other relevant circumstances regarding the person's ability to pay.

     3.    N.J.S.2C:52-5 is amended to read as follows:

Expungement of records of young drug offenders.
     2C:52-5. Expungement of Records of Young Drug Offenders. Notwithstanding the provisions of N.J.S.2C:52-2 and N.J.S.2C:52-3, after a period of not less than one year following conviction, termination of probation or parole or discharge from custody, whichever is later, any person convicted of an offense under chapter 35 or 36 of this title for the possession or use of a controlled dangerous substance, convicted of violating P.L.1955, c.77, s.3 (C.2A:170-77.5), or convicted of violating P.L.1962, c.113, s.1 (C.2A:170-77.8), and who at the time of the offense was 21 years of age or younger, may apply to the Superior Court in the county wherein the matter was disposed of for the expungement of such person's conviction and all records pertaining thereto.  The relief of expungement under this section shall be granted only if said person has not, prior to the time of hearing, violated any of the conditions of his probation or parole, albeit subsequent to discharge from probation or parole, has not been convicted of any previous or subsequent criminal act or any subsequent or previous violation of chapter 35 or 36 of this title or of P.L.1955, c.277, s.3 (C.2A:170-77.5) or of P.L.1962, c.113, s.1 (C.2A:170-77.8), or who has not had a prior or subsequent criminal matter dismissed because of acceptance into a supervisory treatment or other diversion program. 
     This section shall not apply to any person who has been convicted of the sale or distribution of a controlled dangerous substance or possession with the intent to sell any controlled dangerous substance except: 
     (1)   Marihuana, where the total sold, distributed or possessed with intent to sell was less than one ounce, or 
     (2)   Hashish, where the total amount sold, distributed or possessed with intent to sell was less than five grams. 

     4.    N.J.S.2C:52-8 is amended to read as follows:

Statements to accompany petition.
     2C:52-8.     Statements to accompany petition.  There shall be attached to a petition for expungement:
     a.     A statement with the affidavit or verification that there are no disorderly persons, petty disorderly persons or criminal charges pending against the petitioner at the time of filing of the petition for expungement.
     b.    In those instances where the petitioner is seeking the expungement of a criminal conviction, or the expungement of convictions pursuant to N.J.S.2C:52-3 for multiple disorderly persons or petty disorderly persons offenses, all of which were entered the same day, or which were interdependent or closely related in circumstances and were committed as part of a sequence of events that took place within a comparatively short period of time, a statement with affidavit or verification that he has never been granted expungement, sealing or similar relief regarding a criminal conviction or convictions for multiple disorderly persons or petty disorderly persons offenses, all of which were entered the same day, or which were interdependent or closely related in circumstances and were committed as part of a sequence of events that took place within a comparatively short period of time by any court in this State or other state or by any Federal court. "Sealing" refers to the relief previously granted pursuant to P.L.1973, c.191 (C.2A:85-15 et seq.).
     c.     In those instances where a person has received a dismissal of a criminal charge because of acceptance into a supervisory treatment or any other diversion program, a statement with affidavit or verification setting forth the nature of the original charge, the court of disposition and date of disposition.

     5.    N.J.S.2C:52-14 is amended to read as follows:

Grounds for denial of relief.
     2C:52-14.  A petition for expungement filed pursuant to this chapter shall be denied when:
     a.     Any statutory prerequisite, including any provision of this chapter, is not fulfilled or there is any other statutory basis for denying relief.
     b.    The need for the availability of the records outweighs the desirability of having a person freed from any disabilities as otherwise provided in this chapter.  An application may be denied under this subsection only following objection of a party given notice pursuant to N.J.S.2C:52-10 and the burden of asserting such grounds shall be on the objector, except that in regard to expungement sought for third or fourth degree drug offenses pursuant to paragraph (3) of subsection c. of N.J.S.2C:52-2, the court shall consider whether this factor applies regardless of whether any party objects on this basis.
     c.     In connection with a petition under N.J.S.2C:52-6, the acquittal, discharge or dismissal of charges resulted from a plea bargaining agreement involving the conviction of other charges.  This bar, however, shall not apply once the conviction is itself expunged.
     d.    The arrest or conviction sought to be expunged is, at the time of hearing, the subject matter of civil litigation between the petitioner or his legal representative and the State, any governmental entity thereof or any State agency and the representatives or employees of any such body.
     e.     A person has had a previous criminal conviction expunged regardless of the lapse of time between the prior expungement, or sealing under prior law, and the present petition. This provision shall not apply:
     (1)   When the person is seeking the expungement of a municipal ordinance violation or,
     (2)   When the person is seeking the expungement of records pursuant to N.J.S.2C:52-6.
     f.     (Deleted by amendment, P.L.2017, c.244) 

     6.    N.J.S.2C:52-15 is amended to read as follows:

Records to be removed, retained as confidential; control.
     2C:52-15. a. Except as provided in subsection b. of this section, if an order of expungement of records of arrest or conviction under this chapter is granted by the court, all the records specified in said order shall be removed from the files of the agencies which have been noticed of the pendency of petitioner's motion and which are, by the provisions of this chapter, entitled to notice, and shall be placed in the control of a person who has been designated by the head of each such agency which, at the time of the hearing, possesses said records.  That designated person shall, except as otherwise provided in this chapter, ensure that such records or the information contained therein are not released for any reason and are not utilized or referred to for any purpose.  In response to requests for information or records of the person who was arrested or convicted, all noticed officers, departments and agencies shall reply, with respect to the arrest, conviction or related proceedings, which are the subject of the order, that there is no record information.
     b.    Records of the Probation Division of the Superior Court related to restitution, a fine, or other court-ordered financial assessment that remains due at the time the court grants an expungement may be retained as confidential, restricted-access records in the Judiciary’s automated system to facilitate the collection and distribution of any outstanding assessments by the comprehensive enforcement program established pursuant to P.L.1995, c.9 (C.2B:19-1 et al.) as ordered by the court.  The Administrative Director of the Courts shall ensure that such records are not released to the public.  Such records shall be removed from the Judiciary’s automated system upon satisfaction of court-ordered financial assessments or by order of the court.

     7.     N.J.S.2C:52-18 is amended to read as follows:

Supplying information to Violent Crimes Compensation Office.
     2C:52-18. Information contained in expunged records may be supplied to the Violent Crimes Compensation Office, in conjunction with any claim, which has been filed with said office.

C.2C:52-23.1  Use of expunged records; nullification.
     8. a. Notwithstanding any provision in this act to the contrary, expunged records may be used by the comprehensive enforcement program established pursuant to P.L.1995, c.9 (C.2B:19-1 et al.) to collect restitution, fines and other court-ordered financial assessments that remain due at the time an expungement is granted by the court.  Information regarding the nature of such financial assessments or their derivation from expunged criminal convictions shall not be disclosed to the public.  Any record of a civil judgment for the unpaid portion of court-ordered financial obligations that may be docketed after the court has granted an expungement of the underlying criminal conviction shall be entered in the name of the Treasurer, State of New Jersey. The State Treasurer shall thereafter administer such judgments in cooperation with the comprehensive enforcement program without disclosure of any information related to the underlying criminal nature of the assessments.
     b.    The court, after providing appropriate due process, may nullify an expungement granted to a person pursuant to subsection a. of N.J.S.2C:52-2 if the person willfully fails to comply with an established payment plan or otherwise cooperate with the comprehensive enforcement program to facilitate the collection of any outstanding restitution, fines, and other court-ordered assessments, provided that prior to nullifying the expungement the person shall be afforded an opportunity to comply with or restructure the payment plan, or otherwise cooperate to facilitate the collection of outstanding restitution, fines, and other court-ordered assessments.  In the event of nullification, the court may restore the previous expungement granted if the person complies with the payment plan or otherwise cooperates to facilitate the collection of any outstanding restitution, fines, and other court-ordered assessments.

     9.    This act shall take effect on the first day of the tenth month next following enactment.

     Approved December 20, 2017.

Saturday, September 1, 2018

Attorney General Memo on Guidance Regarding Municipal Prosecutors’ Discretion in Prosecuting Marijuana and Other Criminal Offenses Gurbir S. Grewal, Attorney General

Attorney General Memo on Guidance Regarding Municipal Prosecutors’ Discretion in Prosecuting Marijuana and Other Criminal Offenses 
Gurbir S. Grewal, Attorney General 
August 29, 2018 
This Memorandum of Guidance (hereinafter “Memorandum”) addresses the scope and appropriate use of prosecutorial discretion by municipal prosecutors handling complaints in municipal court. The Memorandum focuses in particular on how municipal prosecutors may permissibly exercise their discretion in cases involving marijuana-related offenses. 
The first part of this Memorandum addresses whether a municipal prosecutor may adopt a policy or practice of “marijuana decriminalization,” under which the prosecutor and/or his subordinates categorically will not pursue convictions for statutory offenses related to marijuana. The adoption of such a policy or practice would be an abuse of discretion and is therefore prohibited. 
The second part of this Memorandum discusses permissible exercises of prosecutorial discretion by municipal prosecutors at different points in the course of a prosecution. Municipal prosecutors necessarily exercise prosecutorial discretion in discharging the duties of their office. Marijuana-related cases are not unique in this regard. In exercising their discretion, however, prosecutors must be mindful of the need to consider the particular facts and applicable law in each individual case; to justify their decisions to the courts; to make a record that permits review for arbitrariness or discrimination; and to adhere to applicable rules of professional conduct. 
The Legislature is considering changes to how marijuana is treated under state law— including changes that may significantly reduce the number of low-level marijuana cases prosecuted in municipal court. Although legislation may soon make this Memorandum unnecessary or require its amendment, nothing in this Memorandum is intended to reflect upon the Legislature’s ongoing deliberations.
Pursuant to the authority granted to me under the Criminal Justice Act of 1970, N.J.S.A. 52:17B-97 to -117, which provides for the general supervision of criminal justice by the Attorney General as chief law enforcement officer of the State to secure the benefits of uniform and efficient enforcement of the criminal law and the administration of criminal justice throughout the State, I, Gurbir S. Grewal, hereby provide the following guidance to all prosecutors operating under the authority of the laws of the State of New Jersey as to the prosecution of marijuana offenses in municipal court. 
I. A Municipal Prosecutor May Not Adopt a Categorical Policy or Practice of Refusing to Seek Convictions for Statutory Offenses Related to Marijuana. 
Prosecutors necessarily exercise some discretion in carrying out the duties of the office. A prosecutor’s discretion is not unlimited, however, and when a municipal prosecutor exceeds the scope of his or her discretion, the County Prosecutor or the Attorney General may intervene. See N.J.S.A. 2B:12-27; see also N.J.S.A. 2A:158-5; N.J.S.A. 2B:25-7. 
It would exceed the scope of a municipal prosecutor’s discretion to adopt a policy or practice of refusing to seek convictions for statutory offenses related to marijuana, notwithstanding the particular facts and applicable law in the individual case before the prosecutor. By categorically suspending enforcement of a State law, a municipal prosecutor impermissibly assumes a role that properly belongs to the Legislature. As explained below, a categorical policy or practice of amending marijuana-related statutory offenses to ordinance violations – or dismissing the charges outright – is impermissible, as is any substantially similar policy or practice. 
Categorical enforcement policies and practices adopted at the county or municipal level may impair one of the objectives of New Jersey’s criminal justice system: to promote the reasonably uniform administration of state laws. See, e.g., N.J.S.A. 2B:25-1. Our system aims to treat similarly situated offenders similarly, without regard to where in the State their conduct allegedly occurred. The discretion of county and municipal prosecutors to adopt categorical may be limited in service of that goal.
Categorical enforcement policies and practices adopted at the county or municipal level also raise questions of preemption. A local governmental unit may not “decriminalize” or 
See, e.g., State v. Brimage, 153 N.J. 1 (1998) (prohibiting county-specific standardized plea offers and policies due to the resulting arbitrary and unreviewable differences between different localities); State v. Baynes, 148 N.J. 434 (1997) (holding that a prosecutor’s rejection of a defendant’s admission into a Pretrial Intervention (PTI) Program “was a patent and gross abuse of discretion” because the prosecutor had “abandoned] his discretion in favor of a per se rule . . . unsupported by the legislative purpose behind both the PTI Statute and the Comprehensive Drug Reform Act, by the Guidelines, and by the caselaw.”); Attorney General’s Directive to Ensure Uniform Enforcement of the “Graves Act” (Oct. 23, 2008; corrected Nov. 25, 2008). 
Page 2 
otherwise license conduct which violates the State’s criminal code. See N.J.S.A. 2C:1-5(d). Any policy or practice of a municipal prosecutor’s office—or any local governmental ordinance, law, or regulation—is preempted if it conflicts with this principle.The line between permissible and impermissible exercises of discretion is not always a clear one. For that reason, among others, municipal prosecutors should confer with the Municipal Prosecutor Supervisor/Liaison in the County Prosecutor’s Office before adopting a policy or practice that approaches the line. 
Judicial decisions shed light on the difference between prosecutorial discretion and abdication. For example, in State v. Winne, 12 N.J. 152 (1953), the Supreme Court sustained the indictment of the Bergen County Prosecutor for criminal nonfeasance in office due to his alleged failure to enforce state laws against gambling. A county prosecutor, the Court concluded, does not “have it within his power to cripple or nullify the enforcement of the criminal law in his county or to choose at his pleasure the portion of the criminal law he would enforce.” Id. at 170- 71. A “prosecutor winking at and tolerating the violation of the laws” is not properly exercising whatever discretion he possesses. Id. 
“The duty of a prosecuting officer necessarily requires that in each case he examine the available evidence, the law and the facts, and the applicability of each to the other, and that he intelligently weigh the chances of successful termination of the prosecution . . . .” State v. Ward, 303 N.J. Super. 47, 57 (App. Div. 1997) (citing Winne, 12 N.J. at 172). When a prosecutor does not weigh the facts and the applicable law in the case before him, but instead rests his decision- making on categorical policies or practices not grounded in the law, he has not yet begun to exercise his prosecutorial discretion. See Winne, 12 N.J. at 173; see also Baynes, 148 N.J. at 451. 
For these reasons, a municipal prosecutor may not adopt a “decriminalization” policy or practice of refusing to seek convictions for statutory offenses related to marijuana, without regard to the particular facts and applicable law in the individual case before him. This policy applies, but is not limited to, charges of possession of marijuana or hashish, N.J.S.A. 2C:35- 10(a)(4), being under the influence of a controlled dangerous substance or its analog, N.J.S.A. 2C:35-10(b), use or possession with intent to use drug paraphernalia, etc., N.J.S.A. 2C:36-2, and loitering to obtain or distribute a controlled dangerous substance, N.J.S.A. 2C:33-2.1. 
II. Municipal Prosecutors Must Exercise Prosecutorial Discretion on a Case-by-Case Basis, Considering the Particular Facts and Applicable Law in Each Case. 
Municipal prosecutors should exercise their prosecutorial discretion in marijuana-related cases as they would in any other case—based on the particular facts and applicable law, and consistent with their ethical obligations to the State, the defendant, and the courts. The applicable 
 (Jan. 24, 2005) (citing State v. Paserchia, 356 N.J. Super. 461 (App. Div. 2003)) (“[A] plea to a violation of an ordinance, when the underlying charge or charges are governed by State statutes is not permitted.”); see also Memorandum to All County Prosecutors re: Training Powerpoint Presentation for Municipal Prosecutors (Apr. 5, 2011); Memorandum to All Municipal Court Prosecutors re: Plea Agreements in Municipal Courts (Nov. 18, 1998). law in marijuana-related cases may include the Supreme Court’s Guidelines to Part VII of the Rules, which include restrictions on plea agreements involving certain drug-related offenses. Although the law places significant limits on municipal prosecutors’ discretion, the law also grants municipal prosecutors the latitude necessary to see that individual justice is done in individual cases. 
Please consider this additional guidance as to how municipal prosecutors might appropriately exercise their discretion at different points in the prosecution of marijuana-related offenses. 
A. Case Selection and Initiation 
Municipal prosecutors do not have the discretion to decide which cases will be initiated or which offenses will be charged within their jurisdiction. See N.J.S.A. 2B:25-5. The municipal court accepts for filing “every complaint made by any person,” R. 7:2-1(b), and the complaining witness—who may be a private citizen, a law enforcement officer, or another official— determines which offenses to charge in the complaint. R. 7:2-1(a). Unlike a county prosecutor, whose exercise of discretion in deciding which charges to pursue is an important part of their prosecutorial duties, the initial charging decision is not the municipal prosecutor’s to make. Accordingly, a municipal prosecutor has no latitude to use any discretionary authority at this stage of the proceedings to dispense or otherwise deal with statutory offenses related to marijuana. 
B. Plea Agreements, Amendments, and Dismissals 
After a complaint is filed, the municipal prosecutor is “responsible for handling all phases of the prosecution of an offense.” N.J.S.A. 2B:25-5(a). As explained in the Commentary on the Guidelines to Part VII of the Rules, the municipal prosecutor is not duty bound to pursue a conviction on every offense charged in every complaint: 
It is recognized that it is not the municipal prosecutor’s function merely to seek convictions in all cases. The prosecutor is not an ordinary advocate. Rather, the prosecutor has an obligation to defendants, the State and the public to see that justice is done and truth is revealed in each individual case. The goal should be individual justice in individual cases. 
In discharging the diverse responsibilities of that office, a prosecutor must have some latitude to exercise the prosecutorial discretion demanded of that position. . . . 
[Guidelines for Operation of Plea Agreements in the Municipal Courts of New Jersey, Pressler & Verniero, Current N.J. Court Rules, Appendix to Part VII cmt. (2018) [Part VII Guidelines].] 
Municipal prosecutors therefore have discretion in appropriate cases to recommend that the court accept a plea to a lesser or other offense, N.J.S.A. 2B:25-11, to move to amend an original charge, N.J.S.A. 2B:25-5(c); N.J.S.A. 2B:25-12, and to request dismissal of a charge, N.J.S.A. 2B:25-5(c). In exercising their discretion, municipal prosecutors must adhere: to constitutional, statutory, and ethical restrictions; to rules, guidance, and decisional law adopted by the Judiciary; and to supervisory instructions of the County Prosecutor and the Attorney General. 
a. Plea agreements 
From 1974 to 1990, all plea bargaining in municipal courts was prohibited, pursuant to a Supreme Court directive. See State v. Hessen, 145 N.J. 441, 446-49 (1996). That prohibition has been relaxed, but the Court’s Part VII Rules and Guidelines still impose significant limits on municipal prosecutors’ discretion to enter into plea agreements, and prohibit the use of plea agreements to resolve certain marijuana and other offenses. See id. at 451-54. 
Plea agreements in municipal court are now governed by Rule 7:6-2; the Court’s Guidelines to Part VII and accompanying Commentary; case law; and guidance from the Office of the Attorney General. When a plea agreement is reached, its terms and the factual basis that supports the charge(s) must be fully placed on the record by the prosecutor, so that the court may review the plea agreement under the “interests of justice” standard. See R. 7:6-2(d). 
The prohibition on resolving certain marijuana and other offenses through plea agreements appears in the Guidelines located in the Appendix to Part VII of the Court Rules. Guideline 4 currently states: 
No plea agreements whatsoever will be allowed in drunken driving or certain drug offenses. 
A. Driving while under the influence of liquor or drugs (N.J.S.A. 39:4-50) and 
B. Possession of marijuana or hashish (N.J.S.A. 2C:35-10a(4)), being under the influence of a controlled dangerous substance or its analog (N.J.S.A. 2C:35-10b), and use, possession or intent to use or possess drug paraphernalia, etc. (N.J.S.A. 2C:36-2). 
.... 
Nothing contained in these limitations shall prohibit the judge from considering a plea agreement as to the collateral charges arising out of the same factual transaction connected with any of the above enumerated offenses in Sections A and B of this Guideline. 
The judge may, for certain other offenses subject to minimum mandatory penalties, refuse to accept a plea agreement unless the prosecuting attorney represents that the possibility of conviction is so remote that the interests of justice requires the acceptance of a plea to a lesser offense. 
under Chapter 35 or 36 of the Code of Criminal Justice arising from the same factual transaction and the defendant pleads guilty to one charge or seeks a conditional discharge under N.J.S.A. 2C:36A-1, all remaining Chapter 35 or 36 charges arising from the same factual transaction may be dismissed by the judge on the recommendation of the prosecutor. See Part VII Guideline 4. Prosecutors should exercise their discretion on a case-by-case basis in evaluating whether to recommend dismissal in this context, and dismissal often will be appropriate. 
b. Amendments and dismissals 
The Guidelines’ prohibitions on certain drug- and alcohol-related plea agreements do not “affect in any way the prosecutor’s discretion in any case to move unilaterally for an amendment to the original charge or a dismissal of the charges pending against a defendant.” Part VII Guideline 3; see also Part VII Guidelines Comment (“Plea agreements are to be distinguished from the discretion of a prosecutor to charge or unilaterally move to dismiss, amend or otherwise dispose of a matter.”). Municipal court complaints charging marijuana-related offenses are subject to the usual rule that a municipal prosecutor may move to amend or dismiss all or part of the complaint “for good cause.” See N.J.S.A. 2B:25-5(c); R. 7:8-5 (dismissal); see also N.J.S.A. 2B:25-12 (amendment); R. 7:14-2 (amendment). 
A municipal prosecutor’s well-founded determination that the State lacks sufficient evidence to proceed ordinarily will constitute “good cause” to amend or dismiss a charge. The Commentary to the Part VII Guidelines states that “a prosecutor should not prosecute when the evidence does not support the State’s charges.” Therefore, insufficient evidence “usually” will be the “cause” for a motion to dismiss a pending charge, and that “the prosecutor should have the ability to amend the charges to conform to the proofs.” Dismissal and amendment on these grounds are the examples of appropriate uses of Guidelines and in guidance from the Division of Criminal Justice. 
 The prohibition of plea agreements for certain marijuana and other drug offenses encompasses any agreement between the prosecutor and the defense “as to the offense or offenses to which a defendant will plead guilty on the condition that any or all of the following occur: (a) the prosecutor will recommend to the court that another offense or offenses be dismissed; (b) the prosecutor will recommend to the court that it accept a plea to a lesser or other offense (whether included or not) than that originally charged; (c)the prosecutor will recommend a sentence(s), not to exceed the maximum permitted, to the court or remain silent at sentencing.” Part VII Guideline 2. A plea agreement includes “all of those traditional practices, utilized by prosecutors and defense counsel, including ‘merger’, ‘dismissal’, ‘downgrade’ or ‘amendment.’” Part VII Guidelines Comment. 
 “No Point” Violations for Graduated Drivers Licensees (Sept. 17, 2008) (“Nothing in this Directive should be construed to limit the authority of the prosecutor to dismiss any charge(s) where the prosecutor represents to the court on the record, either in camera, or in open court, that there is 
While insufficiency of the evidence “usually” will be the basis for an amendment or dismissal, other reasons might justify amendment or dismissal of a complaint. The relevant statutes and Court Rules do not specifically address what other circumstances might constitute “good cause.” To the extent permitted by law, however, a municipal prosecutor should consider the impact of adverse collateral consequences of a conviction based on the specific circumstances or factors presented by the defendant or elicited by the court. Such circumstances or factors may include, but are not limited to: 
1.   The age of the defendant, and the nature and extent of the defendant’s prior criminal record; 
2.   The nature and circumstances of the offense and the arrest; 
3.   Adverse employment or military enlistment consequences (including hindering or precluding future employment, access to professional/occupational licensing, or ability to enlist in the armed services); 
4.   Adverse immigration consequences; 
5.   Adverse educational consequences (including potential removal from school or student housing and hindering or precluding access to student financial assistance); 
6.   Adverse housing and other government benefit consequences (including hindering or precluding future access to public housing and monetary benefits from the government); 
7.   Adverse familial consequences (including parenting/family status changes and financial or other burdens for family members); and 
8.   Other factors identified in the National Prosecution Standards published by move to amend or dismiss a complaint, a municipal prosecutor should be guided by the Court’s admonition that “the prosecutor has an obligation to defendants, the State and the public to see that justice is done and truth is revealed in each individual case.” See Commentary to Part VII Guidelines. “The goal should be to achieve individual justice in individual cases.” Ibid. 
insufficient evidence to warrant a conviction, or that the possibility of acquittal is so great that dismissal of the charge(s) is warranted in the interests of justice.”). 
 (3d ed.), https://ndaa.org/wp-content/uploads/NDAA-NPS-3rd-Ed.-w-Revised-Commentary.pdf. 
The reasons for any amendment or dismissal must be acceptable to the municipal court. If a municipal prosecutor moves to amend or dismiss a complaint, the prosecutor must personally represent on the record the reasons in support of the motion. See Part VII Guideline 3. The prosecutor should anticipate that the court will question the basis for the motion to prevent an improper amendment or dismissal. See, e.g., Memorandum from Philip S. Carchman, J.A.D., to Municipal Court Judges re: Sample Questions for Use in Drunk Driving Cases (Dec. 2, 2004). At all times, the prosecutor should remain mindful of his ethical obligations to the State and the court. See, e.g., In re Norton, 128 N.J. 520, 533-40 (1992); In re Whitmore, 117 N.J. 472, 475-80 (1990). 
C. Sentencing 
Municipal court judges exercise considerable discretion at sentencing. For statutory offenses, the court’s discretion is subject to any statutory maximum or minimum penalties and based on the criteria prescribed by N.J.S.A. 2C:44-1 to -3 and N.J.S.A. 2C:51-2. See R. 7:9-1(b). A municipal prosecutor seeking to mitigate the consequences of a marijuana conviction may make favorable sentencing recommendations or not object to the defendant’s requests. The prosecutor also may support the defendant’s application for a “compelling circumstances” exception to the driver’s license suspension penalty under N.J.S.A. 2C:35-16 and/or the defendant’s application for relief from the Drug Enforcement and Demand Reduction penalty under N.J.S.A. 2C:35-15. 
D. Diversion Programs and Community Court 
A number of programs offer eligible defendants in municipal court cases diversionary treatment as an alternative to traditional prosecution. These include conditional discharge and conditional dismissal programs. In addition, the Cities of Newark and Jersey City operate innovative Community Solutions (or community court) programs focused on remedying some of the underlying causes of low-level crime. Municipal prosecutors may be called upon to recommend whether eligible defendants should be accepted into these programs. Nothing in this Memorandum should deter any municipal prosecutor from freely recommending that any eligible defendant be accepted into any of these diversion programs. 
Recent decisions from the Appellate Division have addressed whether marijuana-related offenses pending against the same defendant in different municipal courts may be consolidated with the defendant’s consent, pursuant to Rule 7:8-4, in order to maintain the defendant’s eligibility for a diversion program. See State v. Whooley, No. A-3395-15T2, 2017 N.J. Super. Unpub. LEXIS 2016 (App. Div. Aug. 8, 2017); State v. Sokolovski, No. A-4734-15T2, 2017 N.J. Super. Unpub. LEXIS 2537 (App. Div. Sept. 17, 2017). The Appellate Division concluded that consolidation was permissible in these cases even though the marijuana-related offenses pending in each municipal court did not “arise] out of the same facts and circumstances.” R.  
7:8-4. Based on the Appellate Division’s decisions, municipal and county prosecutors should consider consenting to consolidation in similar cases to allow defendants to qualify for diversion. 
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III. Effective Date 
On July 24, 2018, I asked all municipal prosecutors to seek an adjournment until September 4, 2018, or later, of any matter involving a marijuana-related offense pending in municipal court, while the Office of the Attorney General developed guidance for prosecutors. That request will expire on September 4, 2018. 
This Memorandum of Guidance shall take effect immediately upon issuance.