On appeal from the Superior Court, Law Division, Mercer County.
Michels, Ard and Furman. The opinion of the court was delivered by Furman, J.s.c. (temporarily assigned).
This appeal by the State raises an issue in the administration of the Code of Criminal Justice, N.J.S.A. 2C:1-1 et seq.
Defendant was indicted in July 1977 for criminal contempt in violation of N.J.S.A. 2A:85-1. He had breached a custody and visitation order of the Juvenile and Domestic Relations Court by removing his infant son to his native Yugoslavia. After a 2 1/2-year interval during which the indictment was on the inactive list, he appeared for arraignment in January 1980. The judge below permitted him to plead guilty to interference with custody, a disorderly persons offense, in violation of N.J.S.A. 2C:13-4, and imposed a $100 fine. The equivalent or congruent offense to the Title 2A crime of criminal contempt of a custody order is interference with custody under the Code. The 1977 indictment was not dismissed. The trial judge commented: "We are not talking about dismissals of the indictment. We are talking about handling the charge as a disorderly persons charge."
The State appeals from the order permitting entry of the plea of guilty, contending that the trial judge erred in accepting such plea to a criminal act committed prior to the effective date of the Code, September 1, 1979.
According to N.J.S.A. 2C:1-1(b) the Code is inapplicable to offenses committed prior to its effective date, except for the provisions of N.J.S.A. 2C:1-1(c) and (d). Section (d), dealing only with persons convicted prior to the Code's effective date, is not relied upon by defendant. His argument is that the order appealed from is in accordance with 2C:1-1(c)(1), which provides that in any case pending on or initiated after the effective date of the Code involving an offense committed prior thereto:
The procedural provisions of the Code shall govern, insofar as they are justly applicable and their application does not introduce confusion or delay; . . .
We disagree with defendant's argument. The classification of criminal conduct, what degree of crime, has the substantive effect of fixing the limits of punishment. The provision of
N.J.S.A. 2C:1-1(C)(1) that the Code governs procedure in the prosecution and disposition of offenses committed prior thereto does not expressly authorize and should not be construed as authorizing the prosecution and disposition of a pending indictment for a Title 2A crime as a disorderly persons charge.
In State v. Molnar , 81 N.J. 475 (1980), the Supreme Court designated the burden of proof on the defense of amnesia as procedural within N.J.S.A. 2C:1-1(c)(1) but upheld the trial judge's charge to the jury according to the law prevailing at the time of the trial, prior to the effective date of the Code, because, in the Supreme Court's view, the Code provisions were not justly applicable and would introduce confusion and delay.
In discussing the distinction between procedural law, subject to N.J.S.A. 2C:1-1(c)(1), and substantive law, the Supreme Court commented:
While in most contexts "it is simplistic to assume that all law is divided neatly between 'substance' and 'procedure,'" Busik v. Levine , 63 N.J. 351, 364 (1973), app. dism., 414 U.S. 1106, 94 S. Ct. 831, 38 L. Ed. 2d 733 (1973), the Legislature apparently intended to draw just such a distinction in N.J.S.A. 2C:1-1(c)(1). The guideposts of "confusion or delay" in 2C:1-1(c) indicate that this provision broadly encompasses the process by which the State attributes guilt and imposes punishment. In the context of a codified criminal law, "procedure" refers to the conduct of a "prosecution" for [an] offense," N.J.S.A. 2C:1-1(b), as contrasted with the "substantive" definitions of conduct declared ...