Attorney Allain Marain

Conditional Dismissal

The conditional dismissal in New Jersey is a kind of “diversion.” Under diversions in general, you are placed under the supervision of the county probation department for a period of time. The period of time most often imposed is twelve months. Conditions accompany that placement (hence the term “conditional”). Conditions typically include having no further arrests, making payments and, sometimes, drug testing. At the conclusion of the supervision period, if all conditions have been satisfied, the charge can be dismissed. You still will have a record of an arrest, but you will not have a record of a conviction. The arrest record itself can later be expunged.

Other types of diversions in New Jersey include Pretrial Intervention (PTI), and conditional discharges. These different kinds of New Jersey diversions are not interchangeable. The type of diversion that may apply to your situation depends on the situation. Each type of diversion has its own features and nuances.

New Jersey's conditional dismissal program is implemented by statutes beginning at N.J.S. 2C:43-13.1. It took effect on January 4, 2014. To be eligible for a conditional dismissal, you must first either plead guilty, or be found guilty after a trial. The conditional dismissal is the only New Jersey adult diversion that has that requirement.

The New Jersey conditional dismissal program is available in municipal court. To be eligible, you must never have been previously convicted of any petty disorderly persons offense, disorderly persons offense, or crime. Further, you must never have previously received an adult New Jersey diversion of any kind. Your charge cannot involve those drug-related offenses for which a conditional discharge might be available.

Some charges cannot be considered for conditional dismissal. That ineligibility can arise from the charge itself, or on account of the circumstances of the charge. Ineligibility exists when the charge:

  • Involves gang activity
  • Involves organized crime
  • Arises from a continuing criminal business or enterprise
  • Arises from an act against a public officer or employee, and involves a breach of the public trust
  • Involves domestic violence
  • Involves an offense against an elderly, disabled or minor person
  • Is an offense involving driving or operating a motor vehicle while under the influence of alcohol, intoxicating liquor, narcotics, hallucinogenics or habit-producing drugs
  • Involves a violation of animal cruelty laws
  • Alleges violation of a municipal ordinance

Even when the charge is one that can be considered for conditional dismissal, its granting is not automatic. Rather, in granting or refusing to grant a conditional dismissal, the court will look at the following:

  • The nature and circumstances of the offense
  • The facts surrounding the commission of the offense
  • Your motivation, age, character and attitude
  • The desire of the complainant or victim to forego prosecution
  • The needs and interests of the victim and the community
  • The extent to which your offense constitutes part of a continuing pattern of anti-social behavior
  • Whether the offense is of an assaultive or violent nature, either in the act itself, or in the possible injurious consequences of the act
  • Whether your participation will adversely affect the prosecution of codefendants
  • Whether diversion is consistent with the public interest
  • Any other factors deemed relevant by the court

If, while participating in a conditional dismissal, you are convicted of a petty disorderly persons offense, disorderly persons offense, or crime, or otherwise violate any term and condition imposed by the court, the court may enter a judgment of conviction and impose whatever fine, penalty, or other assessment that could be imposed by the court in accordance with your prior plea of guilty or finding of guilt. On the other hand, if you complete your period of supervision uneventfully, the court may dismiss the proceedings. This dismissal shall be considered not a conviction.

The conditional dismissal program is not a means whereby you avoid the financial consequences of a conviction. In return for the “privilege” of the conditional dismissal, the court imposes all of the statutory assessments that would accompany a conviction. In addition, the court imposes a $75.00 application fee. You can think of the New Jersey conditional dismissal as a “get out of jail” card, but not as a “get out of jail free” card. Thus the benefits of the conditional dismissal are it enables you to avoid jail, and to avoid a record of a conviction. The value of each of these benefits can, however, be enormous.

The decision to seek or bypass the New Jersey conditional dismissal program is complicated. Even when eligible for conditional dismissal, it is a program that you should not automatically seek. Numerous factors must be weighed. These factors include the following:

  • Defenses to the charge that might be available
  • The financial consequences of participation
  • Possible immigration consequences of participation
  • How the conditional dismissal might affect international travel
  • How the conditional dismissal might affect your liability to the victim should that person decide to file a lawsuit
  • How the conditional dismissal might affect your ability to successfully sue others involved in the matter, if that is something that you might be considering

These factors, and others, can be intelligently weighed only through assistance of a skilled and experienced New Jersey lawyer. And once you have made your decision, a skilled and experienced New Jersey lawyer is needed to help implement it.

The decision to seek or not seek the conditional dismissal is one that usually cannot be made in an initial conference. Rather, it requires careful review of all of the circumstances of the matter. Criminal Lawyers in New Jersey have the skills and experience needed to guide you through the process. Although your initial conference will likely be insufficient for them to formulate advice, it begins the process. And the sooner the process begins, the better they can guide you through.

Initial conferences often incur no charge. In any event, charges can arise only after being specifically informed of that possibility. Take advantage of it. Call them.

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