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State v. Garland

Decided: February 26, 1968.


Simpson, J.c.c.


Defendant, a resident of New Jersey, appealed from a judgment of the Municipal Court of the City of Hackensack, wherein he was found guilty of violating N.J.S. 2A:169A-2 and -4 for failing to register as a narcotics offender and failing to carry an identification card.

The trial de novo was pro forma, all material facts to support conviction for violation of both sections of the act being

stipulated, and leaving the constitutionality of this Registration Act N.J.S. 2A:169A-1 et seq., as the sole issue.

Defendant had pleaded guilty to violations of N.J.S. 2A:170-8 (use of narcotic drugs) and 2A:170-77.5 (possession of narcotic paraphernalia), and on December 17, 1965 was placed on probation in conjunction with voluntarily admitting himself for treatment at a neuropsychiatric institute N.J.S.A. 30:6C-6. His probation terminated on March 6, 1967 and he has had a clean record since that time. Although previously advised by his probation officer to register and carry the identification card required by N.J.S. 2A:169A-2 and -4, defendant did not do so. He was charged with the violations on October 14, 1967, and the municipal court conviction followed. The magistrate imposed a 90-day jail term, which was suspended, probation for six months, a $50 fine and $5 costs.

The attack on N.J.S. 2A:169A-1 et seq. as being unconstitutional is on a broad front, the assertions being that the act is discriminatory, constitutes cruel and unusual punishment, violates the right to travel, and compels a defendant to be a witness against himself. The very breadth of these assertions, however, almost masks the true issue of the validity of this exercise of the State's police power, for as was recently said in Duratron Corp. v. Republic Stuyvesant Corp. 95 N.J. Super. 527 (App. Div. 1967):

"No constitutional protection is absolute. Traditionally, the courts have weighed each alleged assault on a constitutional right by comparing the social values, public or private, attending the measures impugned as invalid, with the degree of hazard if any to which the constitutional right or privilege was subjected by such conduct." (at p. 533)

The precise question of the validity of a state statute requiring criminal registration does not appear to have been decided in a reported opinion in the United States, although a federal statute requiring registration of narcotic offenders has been upheld against various allegations of unconstitutionality.

U.S. v. Eramdjian, 155 F. Supp. 914, 82 A.L.R. 2 d 398 (D.C. Cal. 1957). In State v. Haynes 78 N.J. Super. 60 (Cty. Ct. 1962), defendant had registered pursuant to N.J.S. 2A:169A-1 et seq., but was convicted for failure to carry and produce his registration card as required under N.J.S. 2A:169A-4. Against a defense of inadvertence, the court held that intentional or willful failure to carry the card was not by implication an element of the offense under our statute. In the present case defendant was aware of the requirements of the Narcotics Control Act, and his violation was willful.

Both Haynes and this case differ, of course, from the situation in Lambert v. People of State of California, 355 U.S. 225, 78 S. Ct. 240, 2 L. Ed. 2 d 228 (1957), wherein a conviction under a municipal ordinance requiring criminal registration was reversed, upon a holding that where a person did not know of the duty to register and there was no proof of the probability of such knowledge, he could not be convicted consistent with due process. Although the broad police power of a state is limited by the Due Process Clause of the Fourteenth Amendment to the United States Constitution, innumerable registration laws have been sustained, even where convicted persons were unaware of the requirements, as Mr. Justice Frankfurter noted in his dissent in Lambert; therefore the holding of the 5 to 4 majority should be limited in its application, as, in his words, "an isolated deviation from the strong current of precedents -- a derelict on the waters of the law * * *."

Also to be distinguished are three decisions of the United States Supreme Court on January 29, 1968 (Haynes v. United States, 390 U.S. 62, 88 S. Ct. 709, 19 L. Ed. 2 d 906; Marchetti v. United States, 390 U.S. 85, 88 S. Ct. 722, 19 L. Ed. 2 d 923, and Grosso v. United States, 390 U.S. 39, 88 S. Ct. 697, 19 L. Ed. 2 d 889 holding, in part, that properly asserted constitutional privileges against self-incrimination preclude ...

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