An interesting conundrum sometimes arise for northern New Jersey criminal defense attorneys: when representing a first-time offender who has indictable (felony) charges that most likley will be remanded (downgraded and sent back) to municipal court, should the attorney try to have the charges remain in Superior Court?

A common situation oftentimes involves shoplifting. For example, I currently represent a high-school student charged with shoplifting for attempting to take $750.00 worth of clothing from a local sporting good store by changing into the items in the dressing room and attempting to walk out while wearing them. The dollar value of the merchandise puts this case squarely into indictable territory. However, the VAST majority of shoplifting cases are sent back to the municipality where the crime occurred.

This is ordinarily a GOOD thing because the charges MUST be downgraded to a disorderly persons level offense (a.k.a a "misdemeanor"). Great, right? Not necessarily. In Supeior Court, a first time, non-violent offender is usually eligible for Pre-Trial Intervention ("PTI"), a diversionary program which upon successful completion by the defendant, results in the dismissal of the charges. Then, the case can be expunged six months after the successfuly completion of the PTI. NO such program exists at the muncipal court level.

Moreover, the Attorney General's office has prohibited muncipal prosecutors from downgrading shoplifting charges. It used to be that a shoplifting case could be downgraded to a "local ordinance": basically a town law. A guilty plea would not be reported to Trenton and thus would not end up on a person's criminal record (the arrest recored would remain). This could be expunged in two years. A great result that oftentimes is no longer possible. Now, many shoplifters have no choice but to plead to the charge or go to trial. If plead to or convicted of shoplifting, a defendant has to wait five years from the end of their sentence to get an expungement.

SO...what is the criminal defense attorney to do? In the case discussed above, I actually called the county prosecutor's office and asked them to KEEP the case, once I confirmed that my client was eligible for PTI. This way, the client will get the program, I can expunge his record and he'll graduate record-free.