On appeal from Superior Court, Law Division, Burlington County.
Lynch, Crane and Horn. The opinion of the court was delivered by Horn, J.A.D.
Defendant Dennis Metcalf appeals from his conviction following a bench trial of unlawfully distributing a controlled dangerous substance, phendimetrazine, in violation of N.J.S.A. 24:21-19(a)(1), and of unlawfully possessing said substance, in violation of N.J.S.A. 24:21-20(a)(1).
Defendant contends that his convictions were invalid for two reasons: (1) the possession and distribution of phendimetrazine was not proscribed under our law, i.e. , not classified as a controlled dangerous substance on May 14, 1975, the date when he was found to have committed said crimes, and (2) the trial judge allegedly applied an erroneous legal test in finding defendant guilty as an aider and abettor.
We take up the first contention. The New Jersey Controlled Dangerous Substances Act, N.J.S.A. 24:21-1 et seq. , became effective on January 17, 1971. L. 1970, c. 226; State v. Ford , 119 N.J. Super. 260, 262 (App. Div. 1972). The New Jersey act is modeled, and is largely dependent, on the corresponding federal regulatory provisions. 21 U.S.C.A. § 811 et seq. N.J.S.A. 24:21-3(c) and 3(d) provides, as pertinent:
c. If any substance is designated, rescheduled or deleted as a controlled dangerous substance under Federal law and notice thereof is given to the commissioner, the commissioner shall similarly control the substance under this act after the expiration of 30 days from publication in the Federal Register of a final order designating a substance as a controlled dangerous substance or rescheduling or deleting a substance, unless within that 30-day period, the commissioner objects to inclusion, rescheduling, or deletion. In that case, the commissioner shall cause to be published in the New Jersey Register and made public the reasons for his objection and shall afford all interested parties an opportunity to be heard. At the conclusion of any such hearing, the commissioner shall publish and make public his decision, which shall be final unless the substance is specifically otherwise dealt with by an act of the Legislature. Upon publication of objection to inclusion or rescheduling under this act by the commissioner, control of such substance under this section shall automatically be stayed until such time as the commissioner makes public his final decision.
d. The State Department of Health shall update and republish the schedules in sections 5 through 8 on a semiannual basis for 2 years from the effective date of this act and thereafter on an annual basis.
Defendant maintains that publication in the context of the New Jersey Controlled Dangerous Substances Act means publication in the New Jersey Register. He asserts that there was no publication in the Register sufficient to alert the public that phendimetrazine had become a controlled dangerous substance.
Phendimetrazine was not on the original schedules of controlled dangerous substances. However, on June 15, 1973 phendimetrazine was classified as a controlled dangerous
substance within Schedule III of the federal act. 38 Fed. Reg. , Vol. 115.
We disagree with defendant's contention that publication under N.J.S.A. 24:21-3(d) requires that the publication be in the New Jersey Register. That medium is only mentioned in the statute as a forum for the commissioner's objection to a federal decision regarding a drug. Nevertheless, N.J.S.A. 24:21-3(d) does impose a requirement of publication upon the Commissioner of Health. The Commissioner, after two years from ...