Notice – Criminal Practice Committee Report–Proposed Amendments to Court Rule 3:28-1(c) (“Persons Ineligible to Apply for Pretrial Intervention”) in Response to State v. Gomes, 253 N.J. 6 (2023) – Publication for Comment – Comments Requested by Dec. 4

        The Supreme Court invites written comments on proposed amendments to Rule 3 :28-1 ( c) ("Persons Ineligible to Apply for Pretrial Intervention"), as set out in the attached report of the Supreme Court Criminal Practice Committee. 

Background; Supreme Court Referral 

        The Court in State v. Richard Gomes, 252 N.J. 6 (2023), considered whether people who received conditional discharges for marijuana offenses before the 2021 adoption of the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA), were statutorily ineligible for admission into the pretrial intervention program (PTI) for new offenses. The two consolidated cases involved defendants with a previous conditional discharge arising from a marijuana possession offense that was no longer unlawful in New Jersey after the adoption of CREAMMA. After differing conclusions by trial courts, the Appellate Division concluded that the "one diversion only" general limitation of the PTI statute, N.J.S.A. 2C:43-12(g)(l ), as well as the provisions of earlier expungement statutes, rendered persons with pre-CREAMMA possessory marijuana convictions ineligible for consideration for admission to the PTI program. 

        The Supreme Court, however, held "that persons who received pre-­CREAMMA conditional discharges for specified marijuana offenses -- just like persons who had pre-CREAMMA convictions for those marijuana offenses -- are no longer categorically precluded from future admission into PTI." Id. at 11. The Court directed prosecutors and reviewing courts to consider the merits of the PTI applications of such persons, without regard to the existence or circumstances of the earlier marijuana-related conditional discharges. The Court asked the Criminal Practice Committee to develop and present expeditiously proposed amendments to Rule 3:28-l(c)(l) to conform with its opinion. Id. at 38. 

Criminal Practice Committee Report and Recommendation 

        In response to the Court's request, the Practice Committee submitted the attached ad hoc report, which proposes the following amendments to Rule 3:28-l(c): 

        (c)(l) Prior Diversion. A person who has previously been enrolled in a program of pretrial intervention; previously been placed into supervisory treatment in New Jersey under the conditional discharge statute pursuant to N.J.S.A. 24:21-27 or N.J.S.A. 2C:36A-1, unless the conditional discharge was for a specified marijuana offense expunged or vacated by N.J.S.A. 2C:52-6.1, or the conditional dismissal statute, N.J.S.A. 2C:43-13.l et seq.; previously was granted a dismissal due to successful participation in the Veterans Diversion Program pursuant to N.J.S.A. 2C:43-23 et seq.; or previously was enrolled in a diversionary program under the laws of any other state or the United States for a felony or indictable offense, shall be ineligible to apply for admission into pretrial intervention. 

Request for Comments 

        Please send any comments on the proposed amendments to Rule 3 :28-1 ( c) in writing by December 4, 2023 to: 

Glenn A. Grant 
Administrative Director of the Courts 
Comments on Proposed Amendments to Rule 3 :28-1 ( c) 
("Persons Ineligible to Apply for Pretrial Intervention") Hughes Justice Complex, P.O. Box 037 
Trenton, New Jersey 08625-0037 

Comments may also be submitted by email to:

        The Supreme Court will not consider comments submitted anonymously. Thus, those submitting comments by mail should include their name and address and those submitting comments by email should include their name and email address. Comments submitted in response to this notice are subject to public disclosure.