TRENTON — Defense attorney Joe Eustace made an unusual request in court a few days ago on behalf of his client, a recent high school graduate accused of shoplifting a few pairs of jeans from a local mall; he asked the local prosecutor to charge his client with stealing more. And the practice is common, defense attorneys say. That's...
Assemblyman Reed Gusciora (D-Mercer) in this 2010 file photo. He's introduced a bill to offer pretrial intervention programs for misdemeanors. TRENTON — Defense attorney Joe Eustace made an unusual request in court a few days ago on behalf of his client, a recent high school graduate accused of shoplifting a few pairs of jeans from a local mall; he asked the local prosecutor to charge his client with stealing more.
And the practice is common, defense attorneys say.
That's because in New Jersey, felony offenders can apply for something called pretrial intervention — a program that allow first-time offenders to have a crime dropped from their criminal record so long as they complete certain conditions, such as community service or counseling or restitution. The programs also usually require the defendants to stay out of legal trouble for up to three years.
Those charged with misdemeanor non-drug offenses don't have the option.
In this case, the prosecutor was Reed Gusciora, who is also a state assemblyman and the sponsor of a bill to allow those charged in municipal court to enter into a pretrial program so long as they hadn't done so within the past five years.
Eustace asked that since there were other people with his client who were also charged with shoplifting, his client's charge be upgraded to say that the value of what he stole was over $200.
"It goes against common sense," Eustace said. "You expose the client to a greater penalty but in return are able to have a diversionary program available to avoid having this on his record."
In the case of Eustace's client, being charged with stealing $200 makes it a felony, gets the case bumped up to state court, and allows his client — who has no criminal history and is about to start college — to apply for the program to keep the charge off his criminal record.
Gusciora agreed.
"It just seemed ridiculous. If you steal a prom dress from Macy's, so long as it's over $200, you can get it dropped from your record. If you're a little old lady who steals box of Depends, you are not entitled to pretrial intervention," Gusciora, D-Princeton, said.
The state has had the program in place since 1979 but only for felonies and minor drug offenses. Charges of lesser offenses like shoplifting and underage drinking can be reduced in court, but not dropped outright unless a defendant goes to trial and wins.
At that time, lawmakers worried that allowing the program for every offense would overwhelm the system, said defense attorney Robert Ramsey, author of a book that outlines the direct and collateral consequences of every traffic or criminal offense in municipal courts in New Jersey.
As a result, he said, lower court attorneys and judges have sometimes found creative ways to offer plea bargains. But not all judges and prosecutors will agree to it, and for some defendants, where you are charged can make the difference.
"There is no mechanism for people to do this; there are no standards. It's on an ad-hoc basis," Ramsey said.
Gusciora's bill passed the Assembly but remains stalled in the Senate Judiciary Committee, headed by another municipal prosecutor, state Sen. Nicholas Scutari.
Scutari said he hasn't had a chance to take a serious look at it, but said it may not be necessary. He said a defendant can have the charges reduced in a plea bargain and can apply to have a crime expunged from their record later.
"I don't know if it's something that we need," said Scutari, D-Linden.
In the case of Eustace's client, five years is a long time.
"He's a young man heading to college," Eustace said. "When he gets out, it would be on his record, and these days, employers do background checks."