For affirmance -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. For reversal -- None. The opinion of the Court was delivered by Sullivan, J.
[71 NJ Page 9] This appeal concerns the interpretation and application of section 27 of the New Jersey Controlled Dangerous Substances Act, N.J.S.A. 24:21-1 et seq.,*fn1 the same statutory provision involved in State v. Alston, 70 N.J. 95 (1976) also decided this day.
Defendant Carl G. Sayko pleaded guilty to Count 1 of an indictment which charged him and his sister with possession of Lysergic Acid Diethylamid (L.S.D.), amphetamines and more than 25 grams of marihuana. Upon acceptance of the plea, Count 2 of the indictment charging defendant with possession of the same controlled dangerous substances with intent to distribute was dismissed, as was a disorderly persons complaint.
Defendant then moved to suspend further proceedings and to be admitted to first offender supervisory treatment pursuant to N.J.S.A. 24:21-27. However, the trial court denied the motion and imposed a sentence of 364 days in the county jail, which was suspended, and fined defendant $1500. On appeal, the Appellate Division, reversing the judgment of conviction, held that defendant's motion to suspend further proceedings should have been granted and remanded the matter to the trial court for imposition of appropriate terms and conditions of supervisory treatment.
The State's petition for certification was granted. 69 N.J. 388 (1976). Also, at the suggestion of this Court, the Attorney General filed an amicus curiae brief in this appeal as well as the appeal in State v. Alston, supra. We now affirm.
The statutory provision involved is Section 27 of the New Jersey Controlled Dangerous Substances Act. It states:
N.J.S.A. 24:21-27 Supervisory treatment for certain first offenses
a. Whenever any person who has not prevoiusly been convicted of any offense under the provisions of this act or, subsequent to the effective date of this act, under any law of the United States, this State or of any other state, relating to narcotic drugs, marihuana, or stimulant, depressant, or hallucinogenic drugs, is charged with or convicted of any offense under subsections 20 a. (1), (2) and (3), and b.,*fn2 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.
b. In no event shall the court require as a term or condition of supervisory treatment under the section, referral to any residential treatment facility for a period exceeding the maximum period of confinement prescribed by law for the offense for which the individual has been charged or convicted, nor shall any term of supervisory treatment imposed under this subsection exceed a period of 3 years. Upon violation of a term or condition of supervisory treatment the court may enter a judgment of conviction and proceed as otherwise provided, or where there has been no plea of guilt or finding of guilt, resume proceedings. Upon fulfillment of the terms and conditions of supervisory treatment the court shall terminate the supervisory treatment and dismiss the proceedings against him. Termination of supervisory treatment and dismissal under this section shall be without court adjudication of guilt and shall not be deemed a conviction for purposes of disqualifications or disabilities, if any, imposed by law upon conviction of a crime or disorderly persons offense but shall be reported by the clerk of the court pursuant to the Controlled Dangerous Substances Registry Act. Termination of supervisory treatment and dismissal under this section may occur only once with respect to any person. Imposition of supervisory treatment under this section shall not be deemed a conviction for the purposes of determining whether a second or subsequent offense has occurred under section 29 of this act or any law of this State.
c. Proceedings under this section shall not be available to any defendant unless the court in its ...