Appealing A Denial into the PTI Program Based on Receiving a Prior Marijuana-Related Conditional Discharge Pre-CREAMMA

State of New Jersey v. Kevin Waters

Docket No. A-1679-21

Decided February 27, 2023

Submitted by New Jersey Drug Crime Lawyer, Jeffrey Hark.

In a recent unpublished opinion, the Appellate Court of New Jersey decided defendant’s appeal from a trial court order affirming the denial of his application for admission into a pre-trial intervention (PTI) program.

Defendant was charged in 2007 with possession of less than fifty grams of marijuana, and began a conditional discharge diversionary program in 2009. After one year of participating in the program, the charge was dismissed. Ten years later, in 2019, defendant was charged with burglary, theft by unlawful taking, criminal mischief, terroristic threats and violation of a domestic violence court order.

In April 2021, after the Legislature adopted the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA), N.J.S.A. 24:61-31 to -56, decriminalizing possession of marijuana in New Jersey, defendant applied for admission into a PTI program. Defendant’s application was denied because of he already received a prior conditional discharge. Defendant subsequently appealed the program director’s denial which was affirmed by the trial court.

Defendant eventually plead guilty to third-degree theft by unlawful taking, N.J.S.A. 2C:20-3(a), and petty disorderly persons harassment, N.J.S.A. 2C:33-4(a). Defendant was given a three-year suspended sentence and ordered to pay restitution for any damage or injury to the victim of the theft. He was also concurrently sentenced to pay fines and fees for the harassment conviction. All remaining counts or charges were dismissed. Defendant appealed once again.

The Appellate Court took into consideration a recent Supreme Court decision that is directly on point with what is at issue in the instant case. In State v. Richard Gomes, the Supreme Court determined 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. Instead, prosecutors and reviewing courts must consider the merits of their PTI applications, without regard to the existence or circumstances of the earlier marijuana-related conditional discharges. As a result of the decision in Gomes, the Appellate Court remanded the case to the trial court for further proceedings consistent with Gomes because defendant’s conditional discharge was for possession of marijuana.

At Hark & Hark, we are experienced attorneys who represent clients in Superior Court for issues like the previously discussed case pertaining to appealing a denial into the PTI program based on receiving a prior marijuana-related conditional discharge pre-CREAMMA. We work hard to ensure that our clients receive exceptional representation in order for them to receive the most favorable outcome in their case as a result.

We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing a similar situation to that of the defendant in this case, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any county in New Jersey including Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County, Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, and Warren County and any town including Audubon, Gloucester City, Oaklyn, Audubon Park, Gloucester Township, Pennsauken, Barrington, Haddon Heights, Pine Hill, Bellmawr, Haddon Township, Pine Valley, Berlin Borough, Haddonfield, Runnemede, Berlin Township, Hi-Nella, Somerdale, Brooklawn, Laurel Springs, Stratford, Camden, Lawnside, Voorhees, Cherry Hill, Lindenwold, Waterford, Chesilhurst, Magnolia, Winslow, Clementon, Merchantville, Woodlynne, Collingswood, Mt. Ephraim, and Gibbsboro.





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Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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