2C:43-26 Application to participate in Veterans Diversion Program.

4. a. At any time after the filing of a criminal complaint, but prior to the disposition of such complaint, an eligible servicemember, the public defender assigned to the eligible servicemember, or the servicemember's own legal counsel may make an application to the prosecutor to participate in the Veterans Diversion Program. The prosecutor may approve or conditionally approve an eligible servicemember's admission into the Veterans Diversion Program. An eligible servicemember may be conditionally approved for admission into the program pending verification of the person's veteran or servicemember status, review of the person's criminal history, and consideration of the findings of a clinical assessment of the person's mental health. Once admitted to the program, the prosecutor may move before the court to postpone proceedings while an eligible servicemember obtains a mental health assessment or participates in case management and mental health services. The court may grant the postponement of proceedings and release the servicemember on the persons' own recognizance subject to compliance with the conditions specified in the prosecutor's diversion agreement. If the prosecutor's review of the person's records and the clinical assessment reveals that the person does not qualify for the program or if the servicemember does not comply with the requirements of the diversion agreement, the prosecutor may notify the court that the State is prepared to proceed with the prosecution of the offense and the court shall schedule court proceedings as appropriate.

b. (1) Except as provided in paragraph (2) of this subsection, the prosecutor shall have the sole discretion to determine if an eligible servicemember qualifies for and is admitted to the Veterans Diversion Program pursuant to P.L.2017, c.42 (C.2C:43-23 et al.) after consideration of the nature of the eligible offense, the causative relationship between the person's diagnosed or apparent mental illness and the commission of the offense, the amenability of the servicemember to participation in the services of the program, the availability of case management and mental health services, the desires of any victim, the person's history of prior convictions, and the probability that diversion will promote the servicemember's recovery, prevent future criminal behavior, and protect public safety. A prosecutor may also consider and approve other diversion alternatives for servicemembers in lieu of the Veterans Diversion Program pursuant to P.L.2017, c.42 (C.2C:43-23 et al.).

(2) No eligible servicemember shall be admitted to the Veterans Diversion Program if the person has criminal charges pending for a crime of the second degree or higher, if the crime or offense involved violence or the threat of violence, or if the person was previously convicted of a violent crime enumerated in subsection d. of section 2 of P.L.1997, c.117 (C.2C:43-7.2). There shall be a presumption against admission into the Veterans Diversion Program, subject to the discretion of the prosecutor after consulting with any victim, for a servicemember charged with any crime or offense involving domestic violence, as defined in subsection a. of section 3 of P.L.1991, c.261 (C.2C:25-19) if the defendant committed the crime or offense while subject to a temporary or permanent restraining order issued pursuant to the provisions of the "Prevention of Domestic Violence Act of 1991," P.L.1991, c.261 (C.2C:25-17 et al.). For purposes of this paragraph, a crime or offense involves violence or the threat of violence if the victim sustains a bodily injury as defined in subsection a. of N.J.S.2C:11-1, or the actor is armed with and uses a deadly weapon or threatens by word or gesture to use a deadly weapon as defined in subsection c. of N.J.S.2C:11-1, or threatens to inflict a bodily injury.

(3) The prosecutor shall consult with victims of an eligible offense prior to approving an eligible servicemember's admission into the Veterans Diversion Program. Nothing in this subsection shall be construed to alter or limit the authority or discretion of the prosecutor to admit an eligible servicemember into the Veterans Diversion Program which the prosecutor deems appropriate.

c. The prosecutor's approval of an application for admission into the Veterans Diversion Program pursuant to this section shall not be conditioned on an admission or plea of guilt by an eligible servicemember.

d. To qualify for prosecutorial diversion under this section, an eligible servicemember shall agree in writing to the following terms, where relevant to the eligible offense:

(1) Participate in case management and mental health services initiated through the Veterans Diversion Resource entity or other similar services and to cooperate with any recommended course of treatment, including the use of medications as prescribed and participation in counseling;

(2) Authorize the case management or mental health service provider to release to the prosecutor periodic status reports regarding the servicemember's participation, cooperation, and recovery progress with case management and mental health services;

(3) Cooperate with case management service providers to procure housing, education, and employment services, where appropriate;

(4) Pay restitution for damages that have resulted from the offense;

(5) Refrain from the use of alcohol or illegaldrugs or frequent any place where alcohol or illegal drugs are sold and used;

(6) Refrain from the possession or use of firearms or other weapons;

(7) Refrain from further criminal activity;

(8) Refrain from any contact with a victim of the offense;

(9) Cooperate with a mentor, where assigned, and the United States Department of Veterans Affairs Justice Outreach Specialist;

(10) Suspend the tolling of time for the purposes of the servicemember's right to a speedy trial while the servicemember is participating in the program;

(11) Advise the prosecutor of any change in the servicemember's residential address or any change in the provider of case management and mental health services; and

(12)Any other terms and conditions related to the servicemember's recovery and public safety deemed appropriate by the prosecutor.

e. The prosecutor shall determine the duration of the servicemember's participation in the Veterans Diversion Program, except that the servicemember's participation in the program shall not exceed two years from the date of the diversion agreement. The term of the servicemember's participation shall be based on the initial clinical evaluation and recommendations, status reports of the servicemember's participation, and progress reports from the case management and mental health service providers, and, where assigned, the servicemember's mentor.

f. The servicemember shall be responsible for coordinating with the Veterans Diversion Resource entity or other case management and mental health service provider to ensure that the prosecutor receives periodic reports on the servicemember's participation, cooperation and recovery progress. The servicemember shall contact the Veterans Diversion Resource entityor other case management and mental health service provider within seven days of the date of the diversion agreement.

g. The court shall review the status of the deferred prosecution of the servicemember no later than six months from the date on which the court approved the prosecutor's initial request for a postponement of the proceedings, and, thereafter, every six months from the most recent review, to consider, based on information provided by the prosecutor, whether the postponement of court proceedings as requested by the prosecutor should continue.

h. To the extent that a sufficient number of mentors are available, the prosecutor or the case management provider on behalf of the prosecutor, shall assign a mentor to the eligible servicemember from the registry of mentors provided by the Department of Military and Veterans' Affairs, except that an insufficient number of mentors available for assignment shall not in itself prevent a prosecutor from diverting an eligible servicemember pursuant to P.L.2017, c.42 (C.2C:43-23 et al.).

i. The prosecutor shall notify the United States Department of Veterans Affairs Justice Outreach Specialist assigned to represent New Jersey when an eligible servicemember who is a veteran has been admitted into the Veterans Diversion Program to facilitate outreach to the servicemember.

j. If, after a minimum of six months from the date of the diversion agreement, the prosecutor is satisfied that the servicemember has complied with the terms and conditions of the diversion agreement, has not been the subject of any subsequent criminal charges, and, based on clinical reports, continues to make progress with case management services and mental health recovery, the prosecutor may move before the court for the dismissal of the criminal charge pending against the servicemember and terminate the servicemember's participation in the Veterans Diversion Program. Alternatively, the prosecutor may require that the servicemember continue participation in the program until sufficient evidence of progress toward recovery is available, except that continued participation shall not exceed the two-year time limit as provided in subsection e. of this section.

k. If, at any time, the prosecutor finds that the servicemember has failed to comply with any term or condition of the diversion agreement, the prosecutor may notify the court that the State is prepared to proceed with the prosecution of the offense and the court shall schedule court proceedings as appropriate.

l. No fee shall be assessed to a servicemember for participation in the Veterans Diversion Program.

m. An eligible servicemember may be admitted to the Veterans Diversion Program one or more times at the discretion of the prosecutor, subject to the restrictions in this section, if such diversion promotes the servicemember's recovery, prevents the commission of future offenses, and protects the safety of the public. Nothing in P.L.2017, c.42 (C.2C:43-23 et al.) shall preclude an eligible servicemember from applying for admission to a criminal justice diversion program, including a program of supervisory treatment pursuant to N.J.S.2C:43-12, conditional discharge pursuant to N.J.S.2C:36A-1, or conditional dismissal pursuant to section 1 of P.L.2013, c.158 (C.2C:43-13.1), as an alternative to the Veterans Diversion Program to the extent that the servicemember meets the eligibility criteria and qualifies for those programs. A dismissal of a criminal complaint resulting from successful participation in a Veterans Diversion Program pursuant to this section shall bar a servicemember's subsequent eligibility for a program of supervisory treatment pursuant to N.J.S.2C:43-12, conditional discharge pursuant to N.J.S.2C:36A-1, or conditional dismissal pursuant to section 1 of P.L.2013, c.158 (C.2C:43-13.1); however an eligible servicemember may seek subsequent admission to the Veterans Diversion Program and may be admitted at the sole discretion of the prosecutor.

n. The dismissal of charges based on a servicemember's successful participation in the Veterans Diversion Program pursuant to this section shall not be deemed:

(1) a conviction for purposes of disqualifications or disabilities, if any, imposed by law upon conviction of a petty disorderly persons, disorderly persons offense, or a crime, but shall be reported to the State Bureau of Identification criminal history record information files for purposes of determining future eligibility or exclusion from other diversion programs; or

(2) a conviction for the purpose of determining whether a second or subsequent offense has occurred under any law of this State.

L.2017, c.42, s.4.