Atlantic City Criminal Defense
March 4, 2023

NJ Pre Trial Intervention PTI - with Meg Hoerner


Melissa is joined for a discussion about the intersection of New Jersey's cannabis law, and Pre Trial Interventions related to weed offenses that pre-date legalization. ⚖️ Please enjoy this episode of Mighty MERP, with criminal defense attorney, and repeat guest, Meg Hoerner

 

Episode Pagehttps://www.mightymerp.com/nj-pre-trial-intervention-pti/

 

Meg Hoerner Linkedin: https://www.linkedin.com/in/meg-mccormick-hoerner-0086b32a

 

Law Office of Melissa Rosenblum: https://www.mrp-law.com/

 

Follow the podcast: https://mightymerp.com

 

Law Firm Podcasting: https://lawfirmpodcasts.com

 

Niche Business Podcasts: https://nichepodcast.net

Transcript

 

Welcome back to the Mighty Merp Podcast, Meg. I'm so excited to talk to you today. Nice to speak with you as well. Thanks for having me on. 3s I love that we can have conversations when 2s new case laws come out and you and I go into our full nerdiness. And I thought with some there's been a lot of cases that have come out in the last few weeks, but the new case regarding a diversionary program in New Jersey has come out state versus Richard Gomez. And 1s I know as host of the New Jersey Criminal Podcast, this is right up your alley to discuss sort of 1s what the law was and where we are now. So I appreciate you coming on. Do you want me to do a backdrop or do you want to kind of explain 2s sort of where we were with a pretrial intervention diversionary program, what we thought, what we know generally or historically before this case law came? Yeah, I know. I'm happy to. And please jump in if I miss anything. 1s I had, just as an aside, done a little clip on my YouTube channel, Meghorner Law, on the basics of PTI. And towards the end of that clip, and it's under the nuts and bolts of Criminal Law section on my YouTube channel, I had referenced this issue that we're going to talk about in a few minutes. 1s And essentially what we have here is a situation where the New Jersey Supreme Court, just last week, Valentine's Day, reversed the Appellate Division opinion related to the ability of someone who has had a prior conditional discharge, whether or not they are even eligible to apply. Conditional discharge, I should say, for a marijuana possession conviction in municipal court, whether or not they are allowed to apply for PTI. Okay, so I'm going to give you a shout out. I watched the YouTube video, and it is a great nuts and bolts of understanding, the pretrial intervention diversionary program. So definitely our listeners should go and listen and watch it. 2s We should just say we're going to refer to PTI as PTI, even though the full name is pretrial intervention. So I think there's a few nuances here that you can explain with the diversionary program. What is that in New Jersey? And then sort of where the issue came into play. And I think the issue generally came into play because marijuana was legalized. But what was the law prior to the legalization of marijuana generally, and when somebody wanted a diversionary? Okay, so prior to marijuana becoming legal in New Jersey, it was always the case that if someone was facing an offense in municipal court, they had the ability, if they had no prior criminal history, to ask the court for a conditional discharge if they were charged with certain drug related offenses, marijuana under 50 grams being one of them. So again, way back when, let's just take 2015, for example. You get charged with possession of marijuana in municipal court. You have never had a diversionary program either at the municipal court level or at the superior court level. You could go in and say, I'll accept responsibility for this marijuana possession, and I'm going to ask the court to enter a conditional discharge. It was a supervisory program. It is a supervisory program. If the person completes it and there's usually some treatment involved, then at the end of that term, the case gets dismissed. It's very similar to pretrial intervention, which is a diversionary program that is a prosecutor's program on the county level. So if, for example, you get charged, you've never been charged before, it's an indictable level offense. It's a third or fourth degree offense. You can ask the prosecutor to consider your admission in the PTI pretrial intervention diversionary program, case gets dismissed. It was always the case that if someone had a we call them CDs, conditional Discharge for Drug Related offenses, it's referred to as a conditional dismissal for other types of offenses. On the municipal court level, it was always the case that if you had a CD in municipal court, you were not eligible for PTI. And that was always the case, and that's still the case. And that's where we get the issue involved. 2s Okay, so let me just be clear. Dog bar background. Let me just be clear. So our listeners understand 1s these are all diversionary programs, correct? Whether they were in municipal court or whether they were in superior court. That is correct. And the idea was that you get that diversionary program one time. So whether you had it in municipal court, whether you you had it in superior court, you couldn't have it both places. Oftentimes we would have situations where a defense attorney, when this was speaking, when I was a prosecutor, wanted to apply their client to PTI 1s from the criminal history. They've got a CD on there from a prior municipal court matter, whether it was conditional discharge, conditional dismissal. And the defense attorney would often say, hey, you know what? I'm going to go back to municipal court and undo that so that the person is eligible to apply. So it's always been the case, and it's still the case that if you have a CD on your criminal history, if you had a prior CD, you aren't eligible for PTI. Okay? Now, the other statute that you kind of need to have the background on, and this is important because the New New Jersey Supreme Court, in their recent opinion reversing the Appellate Division, basically is looking at these three separate statutes, right? You've got the PTI. 3s PTI statutes which say, hey, you have a prior CD, you're not getting PTI, you've then got Expungement. Well, not to interrupt you, I'm sorry, but it actually says if you have a prior diversion, correct? Right. It doesn't actually specify 2s conditional discharge or a conditional dismissal. And it actually pertains to if you have a diversion even in another correct. So any prior diversionary program and that's correct. And that's important. 2s Let's say, though, for example, 1s that you had a prior diversionary program that you had expunged. The Expungement statute says that that prior expunged diversionary program may not shall, but may be used, for example, if the person were to either apply for PTI again or for purposes of pretrial detention. So that's important because oftentimes you have a situation where somebody gets PTI, they get it expunged, they have a new charge, and then you say, well, wait a minute, it was Expunged. Can we look back to that for certain things? And the Expungement statute says, yeah, you may for these two situations. And I don't want to get too far down the rabbit hole, but that's important for something that we're going to talk about in a couple of minutes. As I said, we're going to go all nerd on this. We are going to really break it down. And so I think that it's important. The language of may or shall in interpretation and how the Supreme Court came to this decision. Absolutely. And that's what the New Jersey Supreme Court says. They go through it in great detail. So then you have 2021, where you've got the Cannabis Regulatory Enforcement Assistance and Marketplace Modernization Act. And the acronym that we will use going forward that is used in the opinion is Cream Lima. 1s I did a whole series on NJ Criminal podcast about Crema with some real good deep dives on that legislation, which is actually basically three separate bills kind of in one. The reason this whole case came about was because 1s Crema says, hey, we are legalizing certain quantities of marijuana possession. We're going to say, for the sake of our discussion today, possession of marijuana under 50 grams because it's still illegal to sell marijuana unless you've got your licensing. So possession of marijuana under 50 grams as of 2021 is now legal. That legislation also provided for the automatic expungement, and the language of that statute says by operation of law. So, 1s Melissa, you had 1s a prior conviction for possession of marijuana ten years ago under 50 grams. This new Crema says that is by operation of law going to be expunged. You don't have to do anything, and it's expunged or supposed to be expunged. Now, 1s the issue that we have here, and we touched upon it in the nuts and bolts video that I referred to a couple of minutes ago, came about because there has been a period of time leading up to this New Jersey Supreme Court decision where let's say, for example, someone had a charge. 2s Prior to the enactment of Crema, had a charge for marijuana possession legal. Now wasn't legal. Then they went into municipal court. They asked for and received a conditional discharge. And conditional discharge is for the drug related offenses. Conditional dismissal is for non drug related offenses. But CD D for marijuana. Okay? 2s Now they pick up a new charge. Crema gets enacted, they pick up a new charge. But they've had nothing else 1s apply to PTI. The position was, that person is not eligible for PTI because they had a prior CD. As we've discussed, that's always been the case. That's still the case. And everybody was like, well, that doesn't make any sense. Crema has made, number one, made marijuana legal, and number two, by operation of law. 2s That charge and conviction has been automatically expunged. 1s Right? And so I always say that when the marijuana law took effect, we can call it Crema, but when marijuana was legalized, because I think that's more palatable, understandable, 1s for our client, for clients, or leg people. But when marijuana became legal 2s and 2s automatically expunged all the 2s arrests, convictions, as well as the conditional discharges, because not everyone filed expungements for the conditional discharges, so it was on defendant's records. 1s I think the defense attorneys thought that this is a no brainer. You'd be eligible for PTI. And I think the prosecutors thought this is a no brainer. You've had your diversion. And my understanding is that the Attorney General agreed. They joined in 1s the amicus briefs that were filed. 2s Really what it comes down to is, if you took advantage of getting a CD for a marijuana related offense prior to the enactment of Crema, and then post Crema picked up an indictable level offense and said, well, I'm going to apply for PTI, you couldn't apply. You couldn't even apply because the position was taken that you had a prior diversionary program. You are not eligible. What's ironic, what's pointed out in this opinion is that if you hadn't gotten a CD but had gotten a conviction in municipal court, you would be eligible to apply. So that made no sense whatsoever. 2s So let me ask you this. 2s So Crema took effect in 2021. Correct. So for two years, 1s we've been in this unknown world, correct? Right, correct. Well, 3s it went to the Appellate Division, and the Appellate Division ruled against the defendant. So what happened was you had two people in two different counties that 2s they had both had prior CDs, okay? They both 2s prior CDs pre Crema, pre legalization of marijuana, and both picked up third or fourth degree offenses post Crema, after marijuana became legal, applied to PTI. Both were told, sorry, you're not even eligible because of that prior CD. I think one of the individuals, the trial court actually said, prosecutor, you've got to consider them anyway. And the other individual, the trial court said, no, okay. Basically, both filed leads to appeal, and they were consolidated, validated. It went to the Appellate Division, and the Appellate Division ruled against both of them, saying, now, you know what? Look at the expungement statute. The expungement statute says that 2s you may look at prior expunged. 4s Convictions or prior expunged Ptis or diversionary programs for a couple of reasons. Again, number one, if the person is applying a PTI another time on a new charge, and number two, for pretrial detention type of situations. And that's what the Appellate Division hung their hat on and essentially went up to the New Jersey Supreme Court. 1s And they have now looked at these three sets of steps. They looked at the history of Crema, they looked at the statutes related to PTI, they looked at the expungement statutes, and this is like a law school exam, 1s statutory interpretation. Read them all together 1s in the context of basically 2s the intent behind Crema, right. Which is? 2s To legalize marijuana and so said it was you. It said illegalize marijuana and to treat it comparable to 1s alcohol and to achieve this remedial purpose. It went all back through the legislative attempt. They went discussed a proposed bill which didn't come into effect, but in any event said what we've all been saying, both of these cases have to go back. It didn't say they're automatically in. It said they can't be barred because of a prior CD. So it has to go back down. It got remand. Each of these individuals got remanded back down so that they can apply and that all of the statutory provisions in PTI can be considered by the prosecutor. 1s Okay. So I'm going to say 1s if I asked you if I was your professor or a layperson, I could go either extreme and say as simply as you could say what the holding, what the rule is, and then we're going to again go further nerdy about why we think what the Supreme Court got. I think 2s the holding is that if you have a conditional discharge for a marijuana related offense. 2s You are not barred from applying to PTI. 1s Do you agree with that? 3s I do think it's as simple as that. And just so it's clear, it's a prosecutor program, PTI, so prosecutors can object for different reasons. 1s It's usually third and fourth degree offenses. Mostly, you are eligible to apply. I've had prosecutors object on third or fourth degrees. It's their program, so they can do that. So are they able to consider in any way the prior condition? I don't believe that they can. I don't believe that they can. They are not categorically. That's the language that's used. They're not categorically precluded from future admission into PTI. PTI is a prosecutor program. Let's say each of these individuals in this consolidated appeal gets sent back down. The prosecutor still objects to their admission. They would have to go through the factors, and the defendants would still have the ability ability to file a motion to compel PTI, to ask the court, make the prosecutor give us PTI. But then the standard is, and you can correct me if I'm wrong the standard is basically, did the prosecutor 2s what's the language I'm looking for? Abuse of discretion. 5s I think of it, this is kind of like similar to when that ruling came out years ago, that a person's immigration status cannot be used by the prosecutor as a basis for saying, we're not going to allow them in the PTI. It's kind of like that. It makes sense. Yeah, I agree with you. 2s Not only that, it's legalized and it's not 3s a pro se mallum offense. It's not an offense that is just evil unto itself. 2s Marijuana is illegal or was illegal because there was a decision to make it illegal, just like there was a decision at one point to make alcohol illegal. Right. And now alcohol is legalized and marijuana is legalized. So I do think it makes sense that a defendant who had a prior case conditional discharge completed should be eligible for PTI. And I have to say that I never thought about it from the perspective of the decision that said, if a defendant actually pled guilty to the marijuana offense, it's not an issue. 1s They were in a better situation in the end than somebody who did the diversionary program in Minnesota. Right. And again, the Appellate Division were hanging their hat on the fact that they had a prior diversionary program and said that that could be considered despite the fact that it was expunged automatically by our person. 2s The language in PTI is clear. It's you know, it says one diversion only is the limitation pursuant to two C 40, 312 G, one. I mean, it's clear on that. So how did the Supreme Court I think you touched on a few of the big phrasing, but how did the Supreme Court distinguish the expungement statute? 2s That says it can be used even if it's expunged for 2s pretrial detention or bail at the time, and it can also be used. 1s Well, what they said, though, they were distinguishing again and looking at these three sets of statutes 2s and at the very, very the end of this opinion, they say this is like an unusual situation. This is a rare situation. We are trying to basically 2s read these three bodies, these three statutes together in conjunction, 2s in light of Crema, in light of this new law that has now said that that prior conduct is not illegal. Right? And that's important. And they made a distinction between 1s the use of the word may in the expungement statute, may look back at a prior diversionary program 1s in a new application 2s and in conjunction with that by operation of law in the Crema statute, that phrase by operation of law, that the prior marijuana convictions are automatically expunged. And so they kind of read these three bodies of may. I'm sorry, I didn't mean to interrupt, but it's a shall cream is a shall expunge as a may. So they went into a lot of discussion about that. But I think ultimately it just makes sense. 2s Right. And I was very surprised, and I think a lot of people were I think a lot of prosecutors were very surprised that an alternate position was taken for so long. 5s I agree. But it seemed like every county took that position. I'm not sure if it was because that was what what the attorney general's position was when it was enacted in 2021. And so they continued or not. But I thought the attorney general had taken the position in the Amicus brief, and I'd have to go back and look. But I thought they took the position that they agreed 2s with the defense attorney's position. But I could be wrong on that. And again, think they do in a footnote in this opinion. Each prosecutor's office we're taking, I think maybe different positions, so don't quote me on that. But ultimately, this decision, I think everyone believes makes sense, and it's. It looks to the legislative intent of Crema. 1s And I think that's what they found to be kind of controlling this idea that Crema was enacted for a remedial purpose. And we're going to follow the intent of that most recent statute in going back and interpreting these other two statutes sets of laws. 2s Let me ask you some questions that I think comes up when we have this final determination. What happens to cases that have been resolved over the last two years? Under what was the belief of what the law was that the defendant was not eligible for PTI, especially after the appellate decision came down? Because a lot of cases, from a practitioner's point of view, were being 2s held open waiting for that decision. Correct. Right. And then once the decision was made, 2s those cases got pushed by yeah, no, I resolved I know the person applied the PTI. They were found to be 4s applied, but they said, no, you're not eligible because of a prior CD. I think we resolved it by way of a deep but you're right, there's a lot of people in this time frame. 1s You're the appellate attorney. I don't really do appellate work. Can they go back and reopen their. 2s Disposition? I think they probably could. It's going to depend on how they resolve the case. So, again, you have somebody that now, okay, I can't plot a PTI on this because I had a prior CD. I'll have to plead and take probation. And now they have a criminal conviction. 1s Right. Because they were told they were not. What would they do if they called your office? 1s What would you tell them? 2s I would say we would need to file some motions to set aside the plea that it wasn't knowing, intelligent and voluntary at the time. You know, we would I would I would recommend them file reopening with with the sentencing judge 2s initially with the sentencing judge because I know they've got a judgment of conviction. Right, right. So there is a way to go back in front of the judge, file a motion to say now that this case has won't apply to PPI. 2s Right. We want to withdraw our guilty plea. There's information we have now that we didn't have at the time. So you think they go back to trial judge? I guess that would be the first step. Right. 5s And to apply to PTI. 3s We both know that those cases get pushed through because of judges and no fault of their own. They have their own pressures of backlog and cases becoming old on their list. And so 2s I'm sure you were getting pushback about not waiting. We knew it was going up to the Supreme Court. Right. And you sure felt pressure. And again, I know the judges feel pressure, too, because they have numbers and stats, and old cases get looked at in a manner of, why do you have a case that's two or three years old? 1s Why is that case not moving? 3s I think that for somebody who now has a felony conviction I mean, you said with your case it was downgraded to a disorderly person's offense. Maybe that individual who can still get an expungement in only three years, and a disorderly person's offense might not prevent someone from losing their job is different than a felony conviction as a result of being precluded from PTI. Right. So, ultimately, I think it was the right decision. And I think you're right. There are a lot of times where the trial courts are concerned about moving their cases along. And another decision that came out last week that we can talk about another time is the state versus Alanowski decision. And without getting down the rabbit hole of that case, 3s the decision that came out on Friday will further delay anyone who was charged with a DWI in the state of New Jersey, where there was a drug recognition expert involved. So I don't want to get into that. But that's another example of sometimes in order for justice to prevail, 1s we can't be so concerned about the delay that it takes to get there. Ultimately, I think that this consolidated opinion that we've talked about the Gomez decision was the right one. I'm glad that the New Jersey Supreme Court came to this decision, 2s but it's a great example of statutory analysis and reading statutes in conjunction with each other so that 1s they are all interpreted properly. 2s Okay. So this is always my question when there is an ambiguity or in a new statute. So with the legalization of marijuana, now, this is like me now wondering what you think happened that it was not 1s clear. 2s It was not clear. I will be the first to say it didn't just specifically state 1s what the Supreme Court specifically stated. So my question is there's the AG's office is in the room, legislatures in the room, the public defender's office in the room, right. As they're legalizing marijuana. I think there were probably so many issues that they needed to work through that mean, I don't know, but it seems like if they probably just didn't think of it or they would have said it, and so then the question becomes, well, they didn't say it, so how do we interpret that? 1s So, I don't know. Sometimes if it's that there's so many issues that they don't address it to the point of they can't agree on it. 1s And so they move forward without 3s I don't know. I wasn't in the room. I wasn't there when the sausage got me. But I can imagine I cannot imagine any criminal defense attorney not thinking this needs to be addressed. 1s So I wonder if they felt like the language of by operation of law, the Shao language and by operation of law was so clear that they didn't want to push too much on it. It could be that they thought it was clear. Right. They thought it was clear. And so 2s it would be interesting to know if this particular issue ever was addressed. 2s Yeah, I don't know the answer to that. I do find that sometimes when new statutes come into play, 1s there's always my question of, did anyone talk to or was there anyone who's going to say, do you know how this is going to affect sentencing? It's like the issue of whether or not the smell of marijuana could be used as reasonable suspicion to 1s search a car. I think you were involved in that. 1s How to add that particular language was, in fact, added to crema. And so that was something that they thought about, again, to be consistent with when a police officer can search an automobile in New Jersey without a warrant, if it's an unexpected stop, and they have 1s probable cause to believe that there's evidence of a crime in a car. 3s Then police can generally search a car. The question becomes, well, it was always the case prior to legalization of marijuana that police officer pulls over a car unexpectedly, routine traffic stop, they smell marijuana. You smell marijuana you think must be smoking marijuana before it was made legal, they would search a car without a warrant. 2s Right. And they only needed reasonable suspicion and or probable cause. And the smell of marijuana really did, 1s unfortunately, 2s justify many searches of a vehicle, whether there was ever marijuana. Prima says you can't do that, 2s right? 1s The language, 1s read it, and made sure I don't think I'm the only person who said it, but I did review it and say it's got to be clear that it's just not sufficient. Now, justice, that was something that was worked along with a lot of other issues. So, I don't know. I would tend to think that they probably felt that the. 3s Portion of the statute which says that prior marijuana conviction by operation of law will be expunged that section. 1s I think they probably thought it was clear that that would include those individuals that took advantage of the conditional discharge diversionary program. 1s Now we have a clear answer. New Jersey Supreme Court has spoken. I think it was the right decision. 2s I do too. 1s A lot of decisions came out recently. I know we're going to have to talk at some point. I'm sure you're going to do it on your podcast. I'm going to do it on my podcast about Olinowski, which you mentioned, which is drug recognition experts in DUI cases. And unfortunately that decision and just really sends it back to the trial court to reevaluate under the new standard. So those cases are going to continue being delayed. 4s And there's been a few other things, search and seizure issues. We'll get back together on those and go through them. It's fun doing this. 2s I do really appreciate you coming on to the Mighty Merck podcast and kind of doing a deep dive. I like when we both get nerdy and we are able to look at the specific language, wage, and reasoning of a decision, which is what I love to do when I do. I do like it, and I find that it's important to dig in right when the decision comes out. Otherwise, 3s life gets in the way. Life happens 2s before you leave. I tried to do this with you the last time, but since we're officially on the Mighty Merck podcast, I'm going to ask you the question, which is you have been in criminal defense. You've been a private criminal defense attorney for about five plus years now, and you were a prosecutor in Keeping County, and you also worked as a district attorney in Philadelphia, I think 1s 13 years, and criminal defense attorney for five. I'm. 2s I know you have them crazy court cases. If you someone asks you, and I am asking, what is crazy court case that when you tell it, people don't even believe it fully cannot be real. And you share in this line of work a common phrase amongst attorneys is you can't make the is shut up. 2s And yes, there have been quite a few. One that I was thinking about it, because you had asked me this the last time we spoke, and one that stands out to me, I don't know if it's the craziest, but one that comes to mind is a case that I handled actually when I was a prosecutor. It was about 2014. At that point in time, I was in cape may. I was assigned to the Gangs, guns and narcotics task force, and the role of that particular unit was to investigate individuals that were believed to be distributing narcotics in and around cape may county. 1s And so, typically, the way the investigation I'm not given any way, any secrets, but typically the way those investigations work would be 1s someone would get arrested for something, they give a tip about someone else that was selling drugs, and so there would be an investigation that would be opened up against that person. And so we had a situation where there was an individual who had actually owned a couple of business in ocean city, I think one, or if not both, of which were destroyed by fires, who was 1s believed to be selling something known as bath salts. Now, bath salts is oftentimes referred to as gravel. 3s The chemical name is alpha PvP. But in any event, it was believed that this person was selling drugs to the citizens of cape may county. Interestingly enough, there had been a prior investigation on this particular person that I wasn't involved with, where I was told that when they went into the home in the basement, he had had several alligators that were being raised in the basement. So that was kind of on everyone's mind. And so there were several undercover buys with this particular person. 1s And that's typical, right? Undercover goes out, meets with the person, pretends to be buying drugs, goes buys these bath salts. Now, there was a whole separate issue with this case, because when he was ultimately charged and then indicted, he was indicted under a pretty kind of catch all provision of the distribution statute, which refers to any other schedule one drug, which is what? Alpha PvP, these basils were. At some point along the line, the state amended the distribution statute to specifically add this particular chemical combination. So there was a lot of argument in this case about whether or not this drug was even legal or not. And he had taken the position that it was legal or that he didn't know that it was illegal, which is really never a winning argument. So we had a lot of pretrial motions on that particular issue where I called somebody from the state to determine how something gets scheduled. And this was scheduled by the state, so it was, in fact, illegal. But the interesting thing about this particular case is typically, as you know, when someone, when there are undercover buys made by an undercover to an individual, 1s that basically leads to probable cause to get a search warrant for the person's house. So we did two undercover buys, got a search warrant for the house. 2s When the search warrant was executed, first thing they were looking for were the allegators. 2s They didn't find any alligators. They found some drugs, they found some firearms, they found some money, and then they also found a set extension. 3s Really like a room that had all the contraptions, face masks, a long table, all kinds of things. I don't know what you're talking about. All mag I don't understand. Tell me. Well, there are a lot of pretrial motions that by the defense attorney. You can understand that none of the that room should come in before the jury, because what did it have to do with? Because there were a lot of pictures that were taken when the search warrant was executed of this particular room and all the little devices and trapsions and toys that were in there. And ultimately, it was scaled down significantly. Well, it was funny. Yeah. We weren't allowed to show 50 pictures of this room, but there was one room or one picture rather, of the room, and I wasn't really allowed to refer to it as the sex dungeon, but a little passing reference to it. And so that was pretty interesting. And ultimately, the reason this case stands out in my mind is because this is the only time that, again, as a prosecutor, I presented my case in chief, I arrested, I won the Reyes motion, and then the defendant pled open. 3s Correct? Really? And so with no recommendation of course at that point in time I asked for something that was significantly higher than what I had asked prior to trial. Right? Because 1s that's a lot of work. And the judge did in fact sentence him significantly higher than he could have had had he pled prior to trial. Now ultimately that came back down and the presiding criminal judge lowered it a little bit to address YARBOROUGH factors that weren't addressed by the trial court. 2s I think I know what case it is now just because of that. So it stands out for and this is a whole other topic alligators, the assault, sex, dungeon 2s and then should there really be this is a whole nother podcast. Should there really be a trial tax? Because that's what it is, right? 2s You have a constitutional right to go to trial. 3s I mean, I know this is a defense attorney. Generally, plea offers should be a little less than what you would get if convicted at trial, weighing the aggravating and mitigating factors and all the things considered. And so I always laugh when I get these offers from the young prosecutors that are like, are you kidding me? My client wouldn't get that at trial. Or that's what my client would get if convicted at trial. So I think that it's not really a tax. It's just the fact that the plea offer is generally a little bit lower to encourage a resolution short of trial. 2s And it's a bargain. Like, you know, when you were teaching I taught sentencing and the rights of the accused. And unfortunately, or fortunately, the way the system is set up is it's a plea bargain, literally? Yeah, it's a plea, literally. And usually when somebody pleads, I'm sure in the case that you just talked about, how many counts of the indictment were there? If you plead, you usually only plead to one count. This particular person was a certain person. The plea offer took that minimum into account. 4s Yeah. And you were on King Mason, and it was still in the appellate phases and Post Conviction Relief Act phases after I left. 2s It went on for a very long, but my former colleagues defended my honor and 1s handled it, I'm sure I would defend. Always fair, I think, as a prosecutor. Yeah, very fair. 3s So what's the name of that case? Do you have like I talked about my Lockbox cash box case. 1s It was the alligator case, the sex dungeon case, the bath salt case. There were a lot of different issues in that one, but I think the sex dungeon was sex. Sex room. It was a sex room. I don't know that it was a dungeon, but that's what we well, I won't say we, but that's what it could be referred to. 2s I say. How would you distinguish between sex room versus dungeon? It wasn't in the basement. It really was. To be fair, it was a room. 3s Again can't make the shut up. 2s I know we have a very strange job, whether you're on the prosecutor side or the defense side. It is very strange, that's for sure. I can't tell you how many times I have said to someone, just when you think you've heard it all. 2s So if I think of any more, I'll let you, you know, 3s so that sounds great. And thank you so much for coming on the Mighty Merp podcast. I love having you. I'm happy to talk to you anytime about any of that. Thank you for having me. I appreciate it. 1s Sunday. Sunday. Talking the law. Always. 2s How far did you run yesterday? Not far. 3s Yeah, I've got to amp it up a little bit if I'm going to finish this half marathon with my daughter next week, but 2s I might finish it. 2s All right, great. Nothing. Yeah. Have a great day. We'll check. Have a good day, and let's do this again. I appreciate it. There's a few cases I'd like to come back and talk about. 1s Thank you. Gre

Meg McCormick HoernerProfile Photo

Meg McCormick Hoerner

Trial Attorney / Podcast Host

Meg is a criminal defense attorney and the host of the NJ Criminal Podcast. As former Chief Assistant Prosecutor for the County of Cape May, New Jersey - Lawyer Meghan J. McCormick Hoerner is in a unique position to properly analyze the strengths and weaknesses of the State’s case against you.