On appeal from Superior Court, Law Division, Sussex County.
Botter, King and McElroy. The opinion of the court was delivered by Botter, P.J.A.D.
These consolidated appeals concern defendants' eligibility for pretrial diversion from criminal prosecution. The issues arise from apparent conflicts among legislative provisions, N.J.S.A. 2C:43-12 et seq. (Code diversion) and N.J.S.A. 24:21-27 (Title 24 or Section 27 diversion), and the Supreme Court's rules and guidelines (Rule 3:28 diversion). The general issue in the Collins appeal is whether a person charged with a drug offense can be granted diversion under the Code of Criminal Justice (the Code) or R. 3:28 when N.J.S.A. 24:21-27 makes him ineligible for diversion because of his prior conviction on drug charges. The general issue in the Melecci appeal is whether a person who has previously been diverted may be diverted again despite the prohibition against diverting an offender more than once under Section 27 and N.J.S.A. 2C:43-12(g).
Collins was indicted in February 1979*fn1 for possession of cocaine contrary to N.J.S.A. 24:21-19. He applied for pretrial intervention but the prosecutor would not consent in view of his prior conviction for a drug offense. In February 1974 defendant had entered a guilty plea to possession of controlled dangerous substances (CDS). The record suggests that he had been
charged with possession of amphetamines and LSD with intent to distribute, but the plea was to simple possession. He was placed on probation for three years and, we are told, was discharged within two years because of his "cooperative attitude." After being indicted in 1979 defendant moved to compel his admission to the Sussex County Pretrial Intervention (PTI) Program. Finding "a suggestion of abuse of discretion here," the trial judge ordered his admission to PTI. We granted the prosecutor leave to appeal that order.
Melecci was indicted for distribution of cocaine in May 1979 contrary to N.J.S.A. 24:21-19(a)(1). His application for PTI was rejected by the program director because of his prior diversion in 1978 under N.J.S.A. 24:21-27. Melecci had been arrested on July 31, 1978 on a charge of possession of marijuana contrary to N.J.S.A. 24:21-20(a)(4). He was placed on supervisory treatment under Section 27 for a period of six months, and the complaint was later dismissed in July 1979 pursuant to N.J.S.A. 24:21-27. In 1980 defendant moved for admission to PTI on the new indictment. The issue presented was not whether Melecci deserved admission to PTI but merely whether he had "standing" to be considered or was absolutely disqualified by the fact that he was previously diverted under Section 27. The trial judge ruled that Melecci was not ineligible for admission to PTI and ordered the PTI director to process Melecci's application on the merits. We granted the State's motion for leave to appeal that order.
Pretrial intervention was introduced in New Jersey on October 7, 1970 by the Supreme Court's adoption of Rule 3:28. Almost simultaneously the Legislature provided a system of diversion for certain drug offenders by Section 27 of the New Jersey Controlled Dangerous Substance Act, N.J.S.A. 24:21-1 et seq., L. 1970, c. 226. It was not until the Code of Criminal Justice was adopted in 1978, effective September 1, 1979, that the Legislature provided a system of pretrial intervention generally for all persons accused of crime. The nature and history of pretrial intervention in New Jersey and elsewhere is traced
comprehensively in State v. Leonardis , 71 N.J. 85, 92-107 (1976) (Leonardis I).
Diversion by suspension of proceedings under N.J.S.A. 24:21-27 was limited to persons charged with or convicted of section 20 (N.J.S.A. 24:21-20) offenses only, namely, unlawful possession of a CDS or the disorderly persons offense of being under the influence of a CDS. State v. Alston , 71 N.J. 1, 6 (1976). These offenses are contrasted with Section 19 offenses which include possession with intent to distribute and distribution of a CDS. More relevant to our inquiry, N.J.S.A. 24:21-27(a) provides that diversion is limited to persons not previously convicted of a drug offense under any state or federal law. Moreover, Section 27(b) provides: "Termination of supervisory treatment and dismissal under this section may occur only once with respect to any person."
N.J.S.A. 24:21-27(c) provides few standards to control a judge's discretion in granting diversion. These include danger to the community and benefit to a defendant by correcting drug dependence. Supervisory treatment could be imposed for a period not exceeding three years, subject to a lesser maximum term of confinement authorized by law in the case of an offender referred to a residential treatment facility. N.J.S.A. 24:21-27(b). However, the benefits of Section 27 were available to all Section 20 offenders, not merely those addicted to or dependent upon drugs. State v. Alston, supra , 71 N.J. at 5-6. In Alston the court held that although the main thrust of supervisory treatment under Section 27 was the rehabilitation of drug users, the Legislature also intended it to be available to prospective users, novitiates and experimenters. Id. Another purpose was "to avoid placing the stigma of a criminal conviction on a first offender" who might be turned away from drug involvement. Id.
R. 3:28 provides a broader program of pretrial intervention applicable to "[a]ny defendant accused of crime" who demonstrates amenability to rehabilitation. Guideline 2 of the "Guidelines
for Operation of Pretrial Intervention of New Jersey," adopted by the Supreme Court, September 8, 1976 and continued under superseding guidelines adopted in January 1979; Pressler, Current N.J. Court Rules (1981 ed.) at 472 et seq. See Leonardis I, supra , 71 N.J. at 121-122. Guideline 3(e) provides that PTI may be available to a repeat offender. It states:
Prior Record of Convictions: The pretrial intervention program is not limited to 'first offenders.' Defendants, however, whose criminal history includes a conviction or convictions of a serious nature should ordinarily be excluded. Defendants charged with more than one offense may be enrolled.
Similarly, Guideline 3(g) would permit diversion of someone who has been diverted previously under R. 3:28 or Section 27, although a defendant "should not ordinarily be re-enrolled."
Thus, until the Code of Criminal Justice was enacted there were two systems for diversion operating in this state. The legislative plan was very limited in scope, designed mainly for drug-dependent or drug-prone persons. Section 27 diversion was limited to persons charged with possession of drugs for personal use only, as distinguished from distribution of drugs. Provision was made for supervision for up to three years, as well as referrals to residential treatment facilities. Diversion was available before or after conviction, but could occur only once and was limited to persons not previously convicted of a drug offense. These provisions earned Section 27 diversion the description as a "drug rehabilitation program," Leonardis I, supra , 71 N.J. at 95, n.5, although it was not strictly limited to drug-dependent offenders.
While PTI under R. 3:28 was initiated on a limited, experimental basis, State v. Senno , 79 N.J. 216, 229-231 (1979), from the outset it carried the potential for conflict between the Legislature and the judiciary. Despite the limitations in N.J.S.A. 24:21-27, R. 3:28(a) expressly contemplated PTI in cases of "sale or dispensing of narcotic drugs by persons not drug-dependent," by requiring the assignment judge in any vicinage to pass on those ...