Cannabis Diversions in New Jersey: A New Decision Changed the Entire Playing Field for Future PTI Applications

At our law firm, we often prevent our clients from experiencing jail and avoiding a criminal record by applying them to participate in diversionary programs known as Pre-Trial Intervention (PTI) in Superior Court or Conditional Discharge (CD) in Municipal Court. Defendants can apply to PTI when they have no prior criminal record and they are first time offenders who are charged with non-violent crimes not involving drug distribution. The enrollment usually consists of one to three years of an unsupervised probation where the client must not receive any new criminal charges. If they manage to complete their probation with no new charges, then the original charges are dismissed and they will have no criminal record for their charges. Through these programs, our clients are given the opportunity to demonstrate their desire to lead a better life, while having the chance to keep a clean record. More often than not, these diversionary programs in the past were due to simple drug possession charges, including possessing small amounts of cannabis.

However, as many residents know, New Jersey recently legalized the sale and possession of certain amounts of cannabis in the spring of 2021. Following these cannabis law changes, there has been a need for PTI Reform because clients were being rejected admission into PTI due to previously enrolling for cannabis charges. We submit this presents a problem, as people should not be denied admission into PTI due to previous enrollment in the Conditional Discharge Program for charges that are now no longer a crime.

This debate surrounding PTI rejection due to prior admission for cannabis charges has been resolved in the STATE OF NEW JERSEY v. RICHARD GOMES decision on February 14, 2023. Decided by the New Jersey Supreme Court, defendants Richard Gomes and Moataz Sheira received Conditional Discharges for cannabis possession before the 2021 implementation of the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA). The defendants faced new charges and both applied for PTI, but one court ruled that Sheira was barred from PTI due to his prior admission, while another court ruled that Gomes was eligible thanks to the “one diversion only” limitation of PTI statutes. The Appellate Court ruled that both defendants in this instance were statutorily barred from PTI.

The New Jersey Supreme Court came to the conclusion that people who had pre CREAMMA convictions for cannabis charges were no longer barred from admission into PTI. Prosecutors and the courts must take into account the merits of their PTI application, while disregarding previous Conditional Discharges for cannabis crimes. At the same time, the court did not mention disregarding prior PTI applications for cannabis crimes when applying for PTI now. Instead, the court decided that only Conditional Discharges for prior cannabis crimes are not considered for PTI application.

Our office has paid great attention to this decision and the issues surrounding previous cannabis crimes and PTI applications. We argue it is not enough for the courts to make a ruling only for prior conditional discharges, when some people have been enrolled into PTI for cannabis offenses before CREAMMA legalized it. We have successfully prevented many of our clients from obtaining criminal record by being admitted into PTI. This decision will not stop us from fighting for those who deserve fair treatment from the justice system.