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State v. Bush

February 21, 1975

STATE OF NEW JERSEY, PLAINTIFF,
v.
ARTURO BUSH, DEFENDANT



Italiano, J.c.c.

Italiano

Defendant was arrested on August 23, 1973 and charged with violating N.J.S.A. 24:21-20(a) (3), possession of less than 25 grams of marijuana; and N.J.S.A. 2A:170-25.1, allowing marijuana plants to grow on his premises. On November 15, 1973 defendant, through his counsel, applied to the Camden Municipal Court for suspension of criminal proceedings pursuant to N.J.S.A. 24:21-27. The municipal judge's denial of the motion for conditional discharge was predicated on the belief that it was entirely within the court's discretion to avail a defendant of the suspension provisions of the statute. Defendant subsequently appealed this denial pursuant to R. 3:23. The County Court, in an unpublished opinion, held the discretion of a trial judge in such matters is limited to a "determination of whether or not a particular defendant qualified for a conditional discharge." The county judge found that the municipal judge was exercising his discretion solely on the basis of his feeling that the remedy under the statute was available only to a special category of offenders (marijuana users), and not to others charged with disorderly persons violations. The matter was remanded to the municipal court for the findings that are required under N.J.S.A. 24:21-27(c), and that court was ordered to entertain defendant's motion in accordance with the statutory requirements. On August 15, 1974 defendant was found not guilty as to the growing charge, but he was again denied a conditional discharge. An appeal to this court ensued.

A trial de novo was held, and at that hearing the following facts were established; defendant is 22 years old; he is married and has a child; he is gainfully employed as a clothing salesman and has been so employed for three years; he has not been previously convicted of any drug-related offenses, and he no longer uses marijuana.

The record of the second municipal court hearing revealed that the latest denial of a conditional discharge was based upon the judge's conclusion that N.J.S.A. 24:21-27 does not apply to those who are charged with possession of marijuana. The judge equated the phrase "supervisory treatment," as used in this section, with some form of medical, psychological or residential treatment. The result flowing from this equation was a ruling that in the absence of such programs for marijuana users to correct any dependency on the drug, the Legislature did not intend for first-time marijuana offenders to have the remedy of conditional discharge available to them. Therefore, the issue presented in this case is whether the absence of residential, medical or psychological treatment for marijuana users precludes suspension of proceedings in the case of first-time marijuana offenders.

N.J.S.A. 24:21-27 in relevant part reads:

Whenever any person who has not previously been convicted of any offense under the provisions of this Act [New Jersey Controlled Dangerous Substances Act] or, subsequent to the effective date of this Act, under any law of the United States, this State or any other State, relating to narcotic drugs, marijuana, or stimulant, depressant or hallucinogenic drugs, is charged with or convicted of any offense under subsections 20 a. (1), (2) and (3), and b., the court, upon notice to the prosecutor and subject to subsection c., may, on motion of the defendant or the court:

(1) Suspend further proceedings and with the consent of such person after reference to the Controlled Dangerous Substance Registry, as established and defined in the Controlled Dangerous Substances Registry Act of 1970, place him under supervisory treatment upon such reasonable terms and conditions as it may require; or

(2) After plea of guilt or finding of guilt, and without entering a judgment of conviction, and with the consent of such person after proper reference to the Controlled Dangerous Substances Registry as established and defined in the Controlled Dangerous Substances Registry Act of 1970, place him on supervisory treatment upon such reasonable terms and conditions as it may require, or as otherwise provided by law.

c. Proceedings under this section shall not be available to any defendant unless the court in its discretion concludes that:

(1) The defendant's continued presence in the community, or in a civil treatment center or program will not pose a danger to the community; or

(2) that the terms and conditions of supervisory treatment will be adequate to protect the public and will benefit the defendant by serving to correct any dependence on or use of controlled ...


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