Directive 08-21 Sealing of Certain Marijuana or Hashish Records Pursuant to N.J.S.A. 2C:52-5.2
https://njcourts.gov/attorneys/assets/directives/dir_08_21.pdf
Criminal/Family/Municipal - Sealing of Certain Marijuana or Hashish Records Pursuant to N.J.S.A. 2C:52-5.2
April 7, 2021
This Directive promulgates the process for sealing records from public access on order of the court at the time of sentencing for a criminal conviction or juvenile adjudication of certain marijuana or hashish offenses in accordance with the statutory amendments to N.J.S.A. 2C:52-5.2, and the marijuana decriminalization laws enacted by L. 2021, c. 19. Additionally, Attorney General Law Enforcement Directive #2021-1, “Directive Governing Dismissals of Certain Pending Marijuana Charges” (issued February 22, 2021), instructs prosecutors to seek dismissal of certain pending marijuana-related charges against either a juvenile or an adult where the conduct occurred on or before February 22, 2021.
The court at the time of sentencing shall order the records of the courts, probation services, and law enforcement agencies to be sealed from the public for a criminal conviction or juvenile adjudication that solely includes the following offense(s):
• N.J.S.A. 2C:35-5(b)(12)(b)1 – distribution of marijuana in a quantity of one ounce or less or hashish in a quantity of five grams or less; or
1 The marijuana decriminalization law, L. 2021, c. 19, reconfigured N.J.S.A. 2C:35-5(b)(12) and N.J.S.A. 2C:35-10(a)(3) by adding subsection (b) to both statutes, effective February 22, 2021. Pursuant to Attorney General Directive #2021-1, referenced above, prosecutors will be dismissing the pending charges for N.J.S.A. 2C:35-5(b)(12) and N.J.S.A. 2C:35-10(a)(3) that occurred on or before February 22, 2021.
N.J.S.A. 2C:35-5(b)(12)(b) and a violation of N.J.S.A. 2C:35-7 on or within 1000 feet of school property and/or a violation of N.J.S.A. 2C:35- 7.1 on or within 500 feet of a public housing facility, public park, or public building; or
- N.J.S.A. 2C:35-10(a)(3)(b) – possession of marijuana in a quantity of more than six ounces or hashish in a quantity of more than 17 grams.
This Directive also promulgates three revised forms and two new forms for use effective immediately, as follows: (1) a revised Judgment of Conviction form for use in the Criminal Division (CN 10070); (2) a revised Presentence Investigation Report (CN 10693); (3) a revised Juvenile Disposition Order form (CN 10812); (4) a new sealing court order form (CN 12763) for use in Municipal Court; and (5) a new Order for Judgment form (CN 12757) for entry of a civil judgment for any outstanding court-ordered financial assessments. See Attachments 1-5 for the above referenced forms.
Additionally, the Supreme Court has amended Rule 1:38-3 (“Court Records Excluded from Public Access”) and Rule 1:38-11 (“Sealing of Court Records”) by order dated February 5, 2021 to conform to the statutory requirements to seal these records from public access upon criminal conviction or juvenile adjudication.
System enhancements have been made in the Judiciary’s computerized systems to indicate the cases that have been ordered sealed from public access pursuant to N.J.S.A. 2C:52-5.2. Information concerning these modifications has been previously sent to Judiciary staff under separate cover. Modifications have also been made to remove information concerning sealed cases in the Public Safety Assessment (PSA) risk factors in accordance with N.J.S.A. 2C:52-5.2(d), which provides that these records shall not be considered whenever the Pretrial Services Program conducts a risk assessment on an eligible defendant for the purpose of making recommendations to the court concerning an appropriate pretrial release decision under N.J.S.A. 2A:162-15 et seq. Additionally, cases that have been ordered sealed pursuant to this statute will not be listed in the “Court History” section of the Presentence Investigation Report in accordance with N.J.S.A. 2C:52-5.2(d), which prohibits use of this information for sentencing purposes in any other case.
If the conviction or adjudication includes a court-ordered financial assessment subject to collection under the comprehensive enforcement program (CEP), the court at the time of sentencing will also enter a civil judgment for the outstanding amount in the name of the Treasurer, State of New Jersey and transfer collections and disbursement responsibility to the State Treasurer pursuant to N.J.S.A. 2C:52- 5.2(a)(2). Accordingly, in those matters the appended Order for Judgment form (Attachment 5) should be completed by court staff, signed by the judge, and electronically forwarded to the Superior Court Clerk’s Office to record the civil judgment, where applicable.
Operationally, the municipal courts have not been part of the comprehensive enforcement program (CEP). Currently, there is no provision in the system to move cases through the CEP and civil judgment process for municipal court matters. Therefore, the municipal courts will continue their current collection process for cases that are ordered sealed.
Process for Sealing these Records in Criminal, Family, and Municipal Courts
For criminal convictions, the Judgment of Conviction (JOC) form (CN 10070) has been updated to add checkboxes to indicate that the sentencing court has ordered: (1) the case to be sealed (page 1) and entry of a civil judgment for the outstanding court-ordered financial assessment (page 2). See Attachment 1. The appended revised JOC form supersedes the JOC form promulgated by the Supplement to Directive # 04-12 (issued July 22, 2016). Court staff will also prepare the Order of Judgment form (CN 12757) for any outstanding financial assessments as noted above and send the signed Order electronically to the Superior Court Clerk’s Office. Additionally, the Presentence Investigation (PSI) Report (CN 10693) has been updated on the first page to display a notation that this case may be eligible for sealing pursuant to N.J.S.A. 2C:52-5.2 if the charge(s) is one of the enumerated offenses. Thus, this Directive modifies and supplements the first page of the PSI form promulgated by the Supplement to Directive #03-13 (issued September 14. 2017). See Attachment 2.
For juvenile adjudications, the attached Juvenile Disposition Order (CN 10812) has been revised to include checkboxes and text for the sealing and outstanding court-ordered financial assessment provision. See Attachment 3.
For convictions in Municipal Courts, upon the judge ordering a case sealed, the court administrator will complete the attached Municipal Court sealing order (CN 12763) and distribute notification to the parties indicated on the sealing order in accordance with those identified in the following paragraph.
The court administrator will enter a sealing code in the automated complaint system to mark the case sealed which will suppress the record from public access. Information concerning the system code has been sent to the courts under separate cover.
The statute also requires notice that the matter has been sealed to be sent to: (1) the Attorney General, county prosecutor, or municipal prosecutor handling the case; and (2) the State Police and any local law enforcement agency having custody of the files and records. For criminal convictions and juvenile adjudications, to satisfy this requirement, the prosecuting attorney will have access to the Judgment of Conviction and Juvenile Disposition Order in the eCourts case jacket.
Until such time as similar functionality is available in municipal eCourts, Municipal Court staff will provide the court order to the Municipal Court prosecutor. Court staff will forward this information electronically to the State Police and will also provide it to the law enforcement agencies that were involved with the case.
Link to forms
https://njcourts.gov/attorneys/assets/directives/dir_08_21.pdf
Form Promulgated by Directive #08-21 (4/7/2021), CN: 12757
