State v. Gomes

• Decision Date: 14 February 2023
• Docket Number: A-64/65 September Term 2021,087192
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Richard GOMES, Defendant-Appellant. State of New Jersey, Plaintiff-Respondent, v. Moataz M. Sheira, Defendant-Appellant. State of New Jersey, Plaintiff, v. Jason Chiriboga, Defendant. State of New Jersey, Plaintiff, v. Maju D. Barry, Defendant.
• Court: New Jersey Supreme Court

253 N.J. 6

288 A.3d 825

STATE of New Jersey, Plaintiff-Respondent,

v.Richard GOMES, Defendant-Appellant.

State of New Jersey, Plaintiff-Respondent,

v.Moataz M. Sheira, Defendant-Appellant.

State of New Jersey, Plaintiff,

v.Jason Chiriboga, Defendant.

State of New Jersey, Plaintiff,

v.Maju D. Barry, Defendant.

A-64/65 September Term 2021

087192

Supreme Court of New Jersey.

Argued January 3, 2023

Decided February 14, 2023

Alison S. Perrone, Deputy Public Defender, argued the cause for appellant in State v. Sheira (A-64-21) (Joseph E. Krakora, Public Defender, attorney; Alison S. Perrone, of counsel and on the brief).

Scott A. Gorman argued the cause for appellant in State v. Gomes (A-65-21) (Maitlin Maitlin Goodgold Brass & Bennett, attorneys; Scott A. Gorman, of counsel and on the brief).

Matthew W. Kelly, Assistant Prosecutor, argued the cause for respondent in State v. Sheira (A-64-21) (Robert J. Carroll, Morris County Prosecutor, attorney; Matthew W. Kelly, on the briefs).

Patrick F. Galdieri, II, Assistant Prosecutor, argued the cause for respondent in State v. Gomes (A-65-21) (Yolanda Ciccone, Middlesex County Prosecutor, attorney; Patrick F. Galdieri, II, of counsel and on the brief).

Matthew J. Platkin, Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Matthew J. Platkin, Attorney General, attorney; Jeremy M. Feigenbaum, Solicitor General, and Claudia Joy Demitro, Assistant Attorney General, of counsel and on the brief).

Alexander Shalom argued the cause for amicus curiae American Civil Liberties Union of New Jersey (American Civil Liberties Union of New Jersey Foundation, attorneys; Alexander Shalom and Jeanne LoCicero, on the brief).

Michael B. Roberts argued the cause for amicus curiae New Jersey State Bar Association (New Jersey State Bar Association, attorneys; Jeralyn L. Lawrence, President, of counsel, and Michael B. Roberts, on the brief).

CJ Griffin argued the cause for amicus curiae Association of Criminal Defense Lawyers of New Jersey (Pashman Stein Walder Hayden, attorneys; CJ Griffin, of counsel and on the brief, and Dillon J. McGuire, on the brief).

Akil Roper argued the cause for amicus curiae Legal Services of New Jersey (Legal Services of New Jersey, attorneys; Akil Roper, Dawn K. Miller, and Rosalyn Scriven, on the brief).

JUDGE SABATINO (temporarily assigned) delivered the opinion of the Court.

In 2021 the Legislature adopted the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA), L. 2021, c. 16, a sweeping law that largely decriminalizes the simple possession of cannabis in New Jersey and redresses many lingering adverse consequences of certain previous marijuana offenses. Among other things, CREAMMA signifies that such prior marijuana offenses must be deemed not to have occurred and directs, by operation of law, their automatic expungement from an offender's criminal record.

The two consolidated appeals before us pose the question of whether persons such as defendants Richard Gomes and Moataz M. Sheira, who received conditional discharges for marijuana offenses before CREAMMA's adoption, are statutorily ineligible for admission into the pretrial intervention (PTI) program for new offenses. PTI is a diversionary program that allows offenders to avoid criminal prosecution for certain first offenses in favor of an alternate disposition.

Applying the "one diversion only" general limitation of the PTI statute, N.J.S.A. 2C:43-12(g)(1), and the terms of expungement statutes enacted before CREAMMA, see generally N.J.S.A. 2C:52-1 to -32.1, the Appellate Division held that the defendants here are statutorily barred from PTI eligibility. The present appeals ensued.

Guided by fundamental principles of statutory interpretation, we harmonize CREAMMA and its manifest legislative intent with the pre-existing general language of the PTI and expungement statutes. Most notably, we carry out the Legislature's command in CREAMMA to apply its reforms to "any case" that arose before its enactment.

Upon harmonizing the statutes, we conclude 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. Our conclusion is consistent with the arguments of the Attorney General as the State's chief law enforcement officer, as well as all but one of the parties and amici before us.

We therefore reverse the Appellate Division's holding and remand for further proceedings in these consolidated cases.

I.

The defendants arrived here through different paths from separate counties, but they have several things in common. Both of them received a previous conditional discharge stemming from a possessory marijuana offense that is no longer unlawful in New Jersey after CREAMMA. They both have been charged with new offenses and have applied for admission into PTI. And both have been categorically excluded from PTI under the Appellate Division's interpretation of post-CREAMMA law. Given those commonalties and the purely legal nature of the issues posed to us on appeal, the details regarding each defendant can be stated concisely.

In November 2020, defendant Gomes was charged in Middlesex County with third- and fourth-degree assault by auto, N.J.S.A. 2C:12-1(c)(2).¹ In March 2021, defendant Sheira was charged in Morris County with two counts of third-degree possession of cocaine and heroin, N.J.S.A. 2C:35-10(a)(1).

Gomes and Sheira previously had been charged with disorderly persons offenses for possession of marijuana under the pre-CREAMMA terms of N.J.S.A. 2C:35-10(a)(4). In both cases, the charges were dismissed through a conditional discharge² following each defendant's successful completion of a diversionary treatment program under N.J.S.A. 2C:36A-1.

Gomes and Sheira each filed applications for admission into PTI for their respective new charges. In the case of Sheira, a criminal division manager notified him that he was ineligible due to his prior conditional discharge. Sheira filed a PTI motion with the support of the Morris County Prosecutor. However, the motion was denied by the trial court, which concluded Sheira was statutorily ineligible for PTI because of his previous conditional discharge for marijuana possession. Sheira moved for leave to appeal that ruling.

As for Gomes, a criminal division manager notified him that he too was ineligible for PTI. Gomes filed a PTI appeal to the Law Division. The Middlesex County Prosecutor opposed his PTI appeal, arguing he was ineligible because of his pre-CREAMMA conditional discharge for marijuana possession. Adopting a contrary interpretation of the statutes, the trial court overruled the ineligibility determination. The court permitted Gomes to apply for PTI and directed the Middlesex County Prosecutor to consider the merits of Gomes's application. The Prosecutor moved for leave to appeal.

The Appellate Division granted interlocutory review of the conflicting trial court decisions, and it consolidated the appeals. Amicus curiae briefs in favor of the defendants’ legal position were filed by the American Civil Liberties Union (ACLU) and the New Jersey State Bar Association (NJSBA). In addition, the Attorney General accepted the appellate court's invitation to appear as amicus curiae and joined with the other amici in supporting the defense's statutory interpretation.

The Appellate Division held that a defendant who received a prior conditional discharge of a disorderly persons offense for marijuana possession was ineligible for PTI, notwithstanding the automatic expungement provision of CREAMMA. State v. Gomes, 472 N.J. Super. 515, 536, 277 A.3d 468 (App. Div. 2022). The appellate court hinged its decision upon generic language within the PTI statute, N.J.S.A. 2C:43-12(g)(1), which predates CREAMMA and states that a person with a prior conditional discharge "shall not be eligible" for PTI. Id. at 529, 277 A.3d 468. The court also found significant that the general expungement statute, N.J.S.A. 2C:52-20, which also was enacted before CREAMMA, expressly allows courts to consider expunged records when deciding whether to grant an application for admission to PTI. Id. at 530, 277 A.3d 468.

The Appellate Division relied in part on State v. O'Brien, 418 N.J. Super. 428, 438, 14 A.3d 56 (App. Div. 2011), in which it held that a defendant who had received a conditional discharge for a marijuana-related offense was barred from PTI, even when the conditional discharge was later vacated upon petition by the defendant.

See Gomes, 472 N.J. Super. at 534-35, 277 A.3d 468. The court further cited as "extrinsic evidence" a proposed bill introduced in the Legislature after CREAMMA's enactment, A. 1978 (2022), which sought to amend the PTI statute to expressly allow those who received expungements from CREAMMA of their marijuana-related conditional discharges to apply for PTI. Id. at 532-33, 277 A.3d 468. The court treated the proposed bill, and its associated Sponsor's Statement describing the state of "current law," as indicia that CREAMMA itself granted no such eligibility. Id. at 533, 277 A.3d 468.

The Appellate Division discerned no language within CREAMMA that appeared to modify or override the pre-existing generic terms of the PTI or expungement statutes. Consequently, it reasoned that the courts should not imply such legislative intent, citing case law disfavoring the "implied repeal[ ]" of statutory provisions. Id. at 533-34, 277 A.3d 468.

Sheira, represented by the Office of the Public Defender, and Gomes, represented by private defense counsel, moved for leave to appeal the Appellate Division's decision, and we granted their motions. 251 N.J. 468, 278 A.3d...