For reversal and remandment -- Chief Justice Weintraub, Justices Jacobs, Proctor, Hall, Mountain, and Sullivan, and Judge Conford. For affirmance -- None.
[62 NJ Page 436] A jury found defendant guilty in July 1971 of unlawful possession and distribution of heroin (N.J.S.A. 24:21-20 and N.J.S.A. 24:21-19), violations of the Controlled Dangerous Substances Act. N.J.S.A. 24:21-1 et seq., L. 1970, c. 226. He was sentenced to a term of two to three years for possession and three to five years for distribution, the terms to be served concurrently. At the time of sentencing defendant admitted, as charged by the State in an accusation pursuant to N.J.S.A. 2A:85-13, that he
had previously been convicted in 1970 for two consolidated offenses of unlawful possession of heroin for which he had served an indeterminate term.
Subsequently, defendant filed a timely motion for modification of sentence. See R. 3:21-10(a). He requested that he be permitted to undergo a course of treatment at Discovery House, a drug rehabilitation center at the Marlboro State Hospital instead of serving his sentence in State Prison.
At the hearing on the motion a representative of Discovery House testified that he believed the defendant would be a suitable candidate for the treatment program. The State indicated that it had no objection to the transfer of defendant to Discovery House if the court determined that it had authority to so modify the sentence. After noting that defendant had evidently been introduced to heroin while serving in the Marine Corps in Vietnam, the trial judge also stated his belief that the defendant would benefit from the treatment program. Nevertheless, the court concluded that because defendant was not a first offender it was without statutory authority to suspend sentence on the condition that defendant complete the treatment program. The court stated that it believed that a part of N.J.S.A. 2A:168-1, which deals generally with the power of the court to suspend sentence and grant probation, prohibited suspension of defendant's sentence. That part of the statute reads:
"* * * The provisions of this section shall not permit the suspension of the imposition or execution of any sentence and the placing of the defendant on probation after conviction or after a plea of guilty or non vult for violation of any provision of chapter eighteen of Title 24 of the Revised Statutes except in the case of a first offender."
The court recognized that N.J.S.A. 2A:168-1 refers to offenders convicted under "chapter eighteen of Title 24 of the Revised Statutes" -- the Uniform Narcotic Drug Law -- and that this law was repealed with the passage of the Controlled Dangerous Substances Act, effective October 19, 1970.
N.J.S.A. 24:21-45. However, the court concluded that the Legislature's failure to amend N.J.S.A. 2A:168-1 to refer to offenders convicted under the Controlled Dangerous Substances Act was simply an oversight, and that the Legislature intended to preclude suspended sentences for subsequent offenders of the new law. The defendant's motion for reconsideration of sentence was therefore denied by the court. On defendant's appeal, the Appellate Division affirmed in an unreported opinion. We granted certification, 62 N.J. 573 (1972), to consider whether the provision in N.J.S.A. 2A:168-1 which prohibits the suspension of sentences for subsequent offenders under the now repealed Uniform Narcotic Drug Law also applies to offenders convicted under the Controlled Dangerous Substances Act.
N.J.S.A. 2A:168-1 on its face applies to subsequent offenders convicted under the old Uniform Narcotic Drug Law. The State argues before us, however, that the failure to amend N.J.S.A. 2A:168-1 was inadvertent, and that we should assume that the Legislature intended to apply the prohibition to sentences under the Controlled Dangerous Substances Act. We conclude that it is unclear whether the Legislature intended the prohibition against suspended sentences to apply to the Controlled Dangerous Substances Act, and consequently we decline to infer such legislative intent without further direction from the Legislature.
The Uniform Narcotic Drug Law was amended in 1951 to provide for minimum and maximum terms of imprisonment for first, second and third offenders. L. 1951, c. 56, N.J.S.A. 24:18-47. That part of N.J.S.A. 2A:168-1 prohibiting suspended sentences for subsequent offenders was added to the statute in 1952, L. 1952, c. 267, and was approved subsequent to a report of a legislative commission which had recommended that "second and third offenders should receive mandatory sentences with no probation, parole or suspension of sentence permitted." Report of the Study and Recommendations of the Legislative Commission to Study Narcotics (1952) at p. 9. In amending N.J.S.A.
2A:168-1 to prohibit suspension of sentences for subsequent offenders, it is therefore clear that the Legislature was implementing a policy that subsequent offenders should serve at least the substantial minimum ...