On certification to the Superior Court, Appellate Division, whose opinion is reported at 152 N.J. Super. 47 (1977).
For reversal -- Chief Justice Hughes and Justices Mountain, Sullivan, Clifford, Schreiber and Handler. For affirmance -- Justice Pashman. The opinion of the court was delivered by Handler, J. Pashman, J., dissenting.
[79 NJ Page 170] This case concerns the validity of a custodial sentence imposed upon defendant, James Marzolf, for the possession of marijuana, following a plea bargain pursuant to which a second charge, possession of marijuana with intent
to distribute, had been dismissed. In imposing the six months custodial sentence, the court took into consideration the quantity of marijuana involved, drawing the inference that defendant's possession was "commercial" in nature. The Appellate Division, in a reported opinion, 152 N.J. Super. 47, reversed and remanded. It held that the judge in sentencing defendant as a first offender for the simple possession of marijuana should not have considered the quantity of marijuana involved or, alternatively, should not have accepted the plea bargain if he intended to sentence defendant on the basis of the dismissed count of possession with intent to distribute. We granted certification. 75 N.J. 585 (1977).
Defendant Marzolf and one Richard Levine were indicted on the criminal charges of possession (N.J.S.A. 24:21-20) and possession with intent to distribute (N.J.S.A. 24:21-19) twenty-five pounds of marijuana. Prior to trial Levine entered into a plea bargain with the prosecutor's office, pleading guilty to the count of possession and agreeing to testify for the State at defendant's trial in exchange for a dismissal of the intent charge and a recommendation of a noncustodial sentence. Marzolf's trial then commenced and several days later, after the matter had been submitted to the jury but before a verdict had been rendered, he and the State entered into a plea bargain. Defendant undertook to plead guilty to the count of possession; the State in turn proposed to dismiss the count of possession with intent to distribute and agreed that no perjury charges stemming from defendant's testimony at trial would be brought; it made no recommendation as to sentencing. Before accepting the guilty plea, the trial court examined defendant as to his possession of the marijuana and satisfied itself that defendant knew that the court was not a party to the agreement, that the court could not promise a noncustodial probationary term and that defendant could be sentenced to a maximum of five years in State Prison and be subjected to a fine of $15,000. The judge then accepted the plea of guilty to the count of possession and
declared a mistrial. Bail was continued and the matter scheduled for sentencing.
At sentencing, in addition to the knowledge of defendant's crime acquired during trial, the court had available a full presentence investigation report. According to its "official version", detectives of the Essex County Bureau of Narcotics arranged by telephone to buy a quantity of marijuana. At the time and location of the arranged meeting, 2:00 A.M. at a Citgo Station in South Orange, a car approached. Police officers asked the passengers to get out and identify themselves. Neither of the occupants, defendant or Levine, had a registration for the car. In the back seat of the car next to defendant the police found a duffle bag. When questioned defendant said it contained laundry. Some clothing fell out of the bag and the police were then able to see what appeared to be blocks of marijuana. The two occupants were arrested. The duffle bag contained 11 bricks of marijuana. Another half brick and a clear plastic bag which appeared to contain marijuana were also found. Subsequent chemical analysis showed that one of the bricks was composed of 819.9 grams (29.2 ounces) of marijuana. The total weight was 25 pounds with a retail market value of $30,000. The report included a characterization of defendant as a large-scale dealer in the drug, to which defendant objected and the court agreed to disregard that information. The presentence report also contained defendant's version of the crime, in which he acknowledged that he and Levine were arrested at approximately 2:00 A.M. in South Orange and that the car had been driven from Pennsylvania en route to Union, New Jersey. Defendant disclaimed responsibility for the distribution of the marijuana. However, he was obviously fully aware not only of the presence of the marijuana in the automobile but also of its intended distribution, which, he claimed, was to be handled by Levine.
The court sentenced defendant to an 18-month term in the County Correctional Center, six months of which were to be served in custody, with the balance suspended subject to probation
together with a fine of $500. The reasoning expressed by the judge at sentencing is important. To a great extent, it is reflected in the colloquy between the court and defense counsel, as well as the assistant prosecutor, which focused upon whether defendant (then 22 years old) was entitled to be considered for sentencing purposes as a youthful, first-time marijuana offender charged only with the simple possession of marijuana. Defense counsel stressed that defendant should be so regarded and be accorded the benefit of a lenient, noncustodial sentence following the views expressed by our courts in State v. Ward, 57 N.J. 75 (1970) and State v. Brennan, 115 N.J. Super. 400 (App. Div. 1971) (dealing with the sentencing of a first-time marijuana offender). The judge voiced doubt as to the applicability of either of these cases to a situation having commercial overtones. Defense counsel then stated:
To which the court rejoined:
No, sir. What I'm telling you is that I am considering the quantity of marijuana and his possession in determining whether or not there was a suggestion of commercialism in order to follow the dictates of Ward and Brennan or not. That's what I'm telling you.
The judge emphasized what he saw as the commercial aspect of the offense:
You went out and actively obtained and was [sic] in possession of 25 pounds of marijuana which the probation department indicates has a wholesale value of about $5,000 and a retail value of $20 to $25,000. I doubt very much whether you had intentions of using any of that marijuana for your own personal use. I suspect very strongly that you only obtained possession of that marijuana to make a profit at the expense of other people your own age.
The court stressed deterrence of both defendant and others as a basis for imposing the six months custodial sentence. On the actual judgment of conviction the judge noted reasons for the sentence imposed:
To punish the defendant for the serious crime he has committed, to inflict sufficient punishment upon the defendant so that both he and others so inclined, will be deterred from committing like crimes in the future, to attempt to reform and rehabilitate the defendant, so that he will not waste any more of his life on crime, and to demonstrate to the defendant, by the imposition of a custodial sentence, what is in store for him should he continue to resort to such criminal conduct.
On appeal defendant argued that his sentence was manifestly excessive and should be reduced to a noncustodial term or, in the alternative, since the sentencing judge imposed a sentence based upon the count of possession with intent to distribute notwithstanding its dismissal, the plea bargain was violated and his conviction and sentence for possession should be set aside to allow him to proceed to trial on both counts. The Appellate Division vacated the sentence and remanded the matter to allow the trial judge, at his option, either to resentence defendant disregarding the amount possessed and any commercial intent that may have characterized that possession, or to vacate the plea bargain and schedule both counts of the indictment for trial.
The Appellate Division stated that the question presented on the appeal was as follows: "May a judge sentencing for simple possession consider the amount possessed and the intent with which it was possessed in determining the sentence to be imposed?" 152 N.J. Super. at 49. The State's
petition for certification restated the same question: "Must a judge sentencing for possession of controlled dangerous substances ignore the amount possessed and the intent with which it was possessed in determining the quantum of sentence?" The Appellate Division also ruled that if the amount of the controlled dangerous substance suggests an intent to distribute, as distinguished from possession for the defendant's own use, a trial judge should not agree to a plea bargain involving dismissal of the more serious charge if the amount is such that he could not ignore the probable existence of such an intent to distribute in imposing sentence. 152 N.J. Super. at 50. This appeal thus presents two interrelated issues, namely, whether a custodial sentence of a youthful, first-time offender charged with the possession of a large quantity of marijuana with substantial monetary value, obviously not intended for his own use, can be considered manifestly excessive; and, if not, whether the imposition of such a custodial sentence, taking into account the quantity of marijuana possessed, may be deemed violative of a plea bargain which involved a plea of guilty for the possession of the marijuana and the dismissal of a second count charging possession of the marijuana with intent to distribute.
Defendant contends that the custodial sentence is manifestly excessive because, as a first offender convicted only of simple possession of marijuana, he was entitled to receive a noncustodial term. This maximum sentence, he argues, is mandated by State v. Ward, supra and State v. Brennan, supra. In connection with this argument, the State raises a threshold issue, disputing that defendant is a first offender.
Defendant's status as a first offender was raised before the sentencing judge. The presentence report noted that defendant had a prior conviction for possession of under 25
grams of marijuana. Defense counsel pointed out to the sentencing judge, however, that the presentence report was incorrect. Defendant's prior offense had resulted in supervisory treatment pursuant to N.J.S.A. 24:21-27 and a discharge with improvement, rather than a conviction. The judge accepted this correction by defense counsel and apparently considered defendant to be a "first ...