§ 2C:43-37 — Application process, legal determination, clinical determination.

6. a. Application process. An eligible person who seeks to apply to the Mental Health Diversion Program shall, by submitting an application, agree to postpone their speedy trial rights. Applicants who are detained pre-trial shall agree to a reasonable amount of excludable time while legal and clinical determinations of eligibility are made. b. Legal determination. The prosecutor shall have the discretion to determine if an eligible person qualifies for diversion to the Mental Health Diversion Program established or maintained pursuant to P.L.2023 c.188 (C.2C:43-32 et al.) after consideration of the nature of the eligible offense, the causative relationship between the person's diagnosed or apparent mental disorder and the commission of the offense as determined by a mental health professional, the amenability of the person 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, any accompanying violations of probation, and the probability that diversion will promote the person's recovery, prevent future criminal behavior, and protect public safety. The prosecutor's office shall make a determination as to legal eligibility within a reasonable time frame. If an applicant is detained, no more than 30 days of excludable time should be granted as against an applicant for a legal determination. (1) A person who allegedly committed a presumptively ineligible offense shall not be permitted to participate in the Mental Health Diversion Program unless the prosecutor further determines, on a case-by-case basis, that mental health treatment will serve to benefit the eligible person by addressing the person's mental disorder and will thereby reduce the likelihood that the person will thereafter commit another offense and no increased danger to the community will result from the person being admitted into the Mental Health Diversion Program. (2) 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.), an application may be considered on a case-by-case basis. For purposes of this paragraph, a crime or offense involves violence or the threat of violence if the victim sustains 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 bodily injury. (3) Offenses enumerated in subsection a., b., c., or, e. of N.J.S.2C:39-5 are presumptively ineligible, however, each application may be considered by the prosecutor on a case-by-case basis subject to prosecutorial discretion. (4) A person charged with a sexual offense as defined in chapter 14 of Title 2C of the New Jersey Statutes that is subject to P.L.2001, c.167 (C.2C:7-12 et seq.) known as Megan's Law and a person currently charged with an arson offense shall be ineligible unless the prosecutor determines on a case-by-case basis that an exception is warranted. (5) The prosecutor shall consult with victims of an eligible offense prior to approving an eligible person's admission into the Mental Health Diversion Program and shall give due consideration to the victims' position on whether the eligible person should be admitted into the program. Nothing in this subsection shall be construed to alter or limit the authority or discretion of the prosecutor to admit an eligible person into the Mental Health Diversion Program which the prosecutor deems appropriate. Nothing in this section shall be construed to limit a prosecutor's discretion to admit any applicant for any ineligible offense on a case-by-case basis if, in the prosecutor's discretion, doing so is in the interests of justice. (6) The prosecutor shall have the discretion to determine whether to approve, disapprove, or conditionally approve a person for diversion into the Mental Health Diversion Program and the determination shall not be subject to review by any court. c. The prosecutor's approval of an application for diversion into the Mental Health Diversion Program pursuant to this section may be conditioned on an admission or plea of guilt by an eligible person. d. Clinical determination. If a county prosecutor determines that an applicant meets the legal requirements for admission into the Mental Health Diversion Program as established in this act, a clinical determination of eligibility shall be made by a licensed mental health professional who holds a current, valid license issued pursuant to subsection a. of section 6 or subsection a. or d. of section 8 of P.L.1991, c.134 (C.45:15BB-1 et seq.) who shall conduct an interview with an applicant to determine clinical appropriateness, and who may also conduct interviews with family members, where the applicant has completed a release authorizing such communications. The licensed mental health professional should have training or certification in co-occurring diagnoses, treatment, and services. The licensed mental health professional shall also assess whether there is a nexus between the person's mental disorder and the alleged crime. The clinical interview may be done in-person or remotely. If conducted remotely, the interview shall be conducted through technology that enables the interviewer and applicant to see one another. The licensed mental health professional shall submit a psychosocial evaluation to aid the prosecutorial determination of the applicant's eligibility for the Mental Health Diversion Program. Psychosocial reports should be returned to the prosecutor's office and applicant's legal counsel simultaneously within a reasonable period of time following clinical interviews so as to not prejudice the prosecutor's office or the defendant's interests. The evaluation shall not be shared outside of the mental health evaluation process within the prosecutor's office. Defense counsel's use of the psychosocial evaluation is limited to the mental health diversion application process, and it cannot be used in any other proceeding. The psychosocial evaluation shall be provided to the judge presiding over the mental health diversion calendar prior to the issuance of any orders of acceptance or guilty pleas. Final decisions as to acceptance shall lie with the prosecutor's office provided appropriate mental health or co-occurring services are available in the community. e. To qualify for prosecutorial diversion under this section, an eligible person shall, in addition to the terms set forth in the application to participate in the Mental Health Diversion Program, 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 Mental Health Diversion Program or other similar services; (2) Provide through defense counsel their mental health records to consider the person's eligibility for the program, and cooperate with any recommended course of treatment, including the use of medications as prescribed and participation in counseling; (3) Authorize the case management or mental health service provider to release to the prosecutor and defense counsel periodic status reports regarding the person's participation, cooperation, and recovery progress with case management and mental health services; (4) Cooperate with case management service providers to procure housing, education, and employment services, where appropriate; (5) Refrain from the use of alcohol, use of any recreational drugs, or any illegal drugs; (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 unless otherwise permitted; (9) The tolling of time for the purposes of the person's right to a speedy trial while the person is participating in the program; (10) Advise the prosecutor of any change in the person's residential address or any change in the provider of case management and mental health services; and (11) Any other terms and conditions related to the person's recovery and public safety deemed appropriate by the prosecutor. An eligible person, in consultation with the public defender assigned to the eligible person or the person's own legal counsel, shall be given the opportunity to review and sign all necessary agreements and informed consents after consulting with their designated or retained counsel. f. The prosecutor shall determine the duration of the person's participation in the Mental Health Diversion Program, whether their acceptance into the diversion program requires a guilty plea or whether a person may be accepted without having to enter a plea of guilty. The length of the person's participation in the program shall not exceed two years from the date of the Order of Acceptance issued by the court unless the prosecutor requests that the person's participation in the program be extended based on the person's treatment needs and progress, and the court for good cause approves the request. The term of the person's participation shall be based on the initial clinical evaluation and recommendations, status reports of the person's participation and attaining established goals, and progress reports from the case management and mental health service providers. g. The eligible person shall be responsible for executing any necessary releases to allow for the Mental Health Diversion Program or other case management and mental health service provider to receive periodic reports on the person's participation, cooperation, and recovery progress, including the execution of any necessary signed releases. The person shall contact the Mental Health Diversion Program or other case management and mental health service provider within seven days of the date of the diversion agreement to initiate treatment, services, and any other required activity. h. If at any time the prosecutor finds that the person has willfully failed to comply with any term or condition of the diversion agreement, the prosecutor shall file a notice with the court and defense counsel alleging willful failure to comply with the conditions of diversion. The court shall afford the person notice and an opportunity to be heard on the issue of the defendant's continued participation in the program. All actions taken to terminate an eligible person's participation in a Mental Health Diversion Program shall be carried out in full compliance with due process laws and the Rules Governing the Courts of the State of New Jersey. i. No fee shall be assessed to a person for application, participation, or treatment in the Mental Health Diversion Program, and program participants shall not be required to pay for treatment and services as a condition of participating in the program. Indigent participants who are sentenced to a term of probation may petition the court for a waiver of any other applicable fines, to the extent consistent with law. The mental health diversion team shall assist program participants in applying for all federal and State benefits that may cover or offset the cost of necessary treatment and services, including medication. The Department of Human Services shall assist a mental health diversion team in identifying available resources, programs, and benefits. j. An eligible person may be admitted to the Mental Health Diversion Program one or more times at the discretion of the prosecutor, subject to the restrictions in this section, if diversion promotes the person's recovery, prevents the commission of future offenses, and protects the safety of the public. Nothing in P.L.2023 c.188 (C.2C:43-32 et al.) shall preclude an eligible person 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 Mental Health Diversion Program to the extent that the person meets the eligibility criteria and qualifies for those programs. Nothing in P.L.2023 c.188 (C.2C:43-32 et al.) shall preclude an otherwise eligible person with pending charges, prior convictions, or prior diversion through 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) from applying to the Mental Health Diversion Program. A dismissal of a criminal complaint resulting from successful participation in a Mental Health Diversion Program pursuant to this section shall bar a person'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 person may seek subsequent admission to the Mental Health Diversion Program and may be admitted at the discretion of the prosecutor. k. The dismissal of charges for a crime of the second, third, or fourth degree, which did not involve violence or the threat of violence, based on a person's successful participation in Mental Health 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 or 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. Except as otherwise provided in this section, nothing in P.L.2023 c.188 (C.2C:43-32 et al.) shall limit the prosecutor's discretion to otherwise divert or provide any other available disposition for a person alleged to have committed any crime or offense other than an eligible offense, and in compelling circumstances may allow the person to participate in a Mental Health Diversion Program established or maintained in accordance with section 3 of P.L.2023, c.188 (C.2C:43-34). L.2023, c.188, s.6.