Muni-mail – App. Div. Zaps Common PTI Scam – State v. O’Brien
[02/13/11 – 12:46 pm] On Thursday, the Appellate Division put a stop to a common procedure that is used around the state to get otherwise ineligible defendants admitted into PTI. Known as a Dylag motion [State v. Dylag, 267 NJ Super. 348, 349 (Law Div 1993) containing the famous line, “Only painters and lawyers can charge white to black”], the procedure is meant to circumvent the limitation of just one diversion from the New Jersey criminal justice system. Typically, the defendant would have open criminal charges pending but be statutorily ineligible for PTI due to a previous conditional discharge (CD). Under Dylag, the defense attorney would return to the municipal court where the CD was granted and move under post-conviction relief to have it vacated. Once the CD is vacated, the defendant would immediately plead guilty to the old drug offense. This procedure would remove the CD and thus, the statutory bar for admission into PTI.
However, last week in State v. O’Brien, the Court ended this practice. In the O’Brien case, the defendant successfully moved to vacate a CD that was 20-years old and then sought admission into PTI. However, the Court held that mere initial admission into the conditional discharge program is all it takes to serve as a statutory bar to PTI.
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