On appeal from the Superior Court, Law Division, Monmouth County.
Matthews, Pressler and Petrella. The opinion of the court was delivered by Pressler, J.A.D.
[183 NJSuper Page 474] This appeal raises important issues concerning the relationship between the sentencing provisions of the New Jersey Code of Criminal Justice (Code), N.J.S.A. 2C:1-1 et seq. , and convictions for violations of the Controlled Dangerous Substances Act (Title
24), N.J.S.A. 24:21-1 et seq. The specific question here raised is whether a first offender convicted of a Title 24 offense is entitled to the presumptive noncustodial sentence provided for by N.J.S.A. 2C:44-1 e for first offenders convicted of an offense other than a crime of the first or second degree.
The factual context in which the issue is posed is relatively simple and undisputed. In December 1979 defendant Marvin H. Sobel, who had not been previously convicted of crime, sold about 12 grams of marijuana to an undercover agent. As a result of that sale a warrant authorizing a search of his wife's store was issued in January 1980. The ensuing search yielded a pound and three quarters of marijuana and a quantity of valium. Defendant was then charged in a four-count indictment with possession with intent to distribute and distribution of less than 25 grams of marijuana, and with possession and possession with intent to distribute of over 25 grams of marijuana and valium.
Pursuant to a plea negotiation, defendant pleaded guilty to distribution of the smaller quantity of marijuana and possession with intent to distribute of the larger quantity of marijuana. Both were violations of N.J.S.A. 24:21-19(a)(1) and subject to a maximum prison term of five years. The State's undertaking was to move to dismiss the remaining two charges and to excise the reference to valium in the charge of possession with intent to distribute which was pleaded to. The only sentencing recommendation included in the plea agreement was a recommendation for the concurrency of any custodial terms imposed. The sentences which were imposed, from which defendant appeals, were concurrent terms of four years each.
Defendant first argues that he was entitled to the presumptive noncustodial sentence provided for by N.J.S.A. 2C:44-1 e, which reads in full as follows:
The court shall deal with a person convicted of an offense other than a crime of the first or second degree, who has not previously been convicted of an offense, without imposing sentence of imprisonment unless, having regard to the nature and circumstances of the offense and the history, character and condition
of the defendant, it is of the opinion that his imprisonment is necessary for the protection of the public under the criteria set forth in subsection a.
Our analysis of the relevant provisions of the Code in light of the apparent legislative scheme and purpose respecting the relationship between the Code and Title 24 persuades us that the sentencing subtitle of the Code is generally applicable to Title 24 offenses. It is our conclusion that the only sentencing provisions of the Code which are inapplicable thereto are those provisions which are specifically and expressly applicable solely to degree-classified offenses and those provisions which prescribe specific terms of imprisonment. Since neither of these exceptions here obtain, we are satisfied that the presumptive noncustodial provision applies to Title 24 offenses subject to the considerations and qualifications hereafter set forth.
In reaching this conclusion we start with the obvious proposition that a Title 24 offense is not an offense defined by the Code but rather by another statute. The first constructional consequence of the non-Code status of Title 24 offenses is the applicability of N.J.S.A. 2C:1-4 c, which first provides that offenses defined by statutes other than the Code are to be classified in accordance with the provisions of N.J.S.A. 2C:1-4 and, to the extent applicable, of N.J.S.A. 2C:43-1. That classification system on its first level is the designation by N.J.S.A. 2C:1-4a and b of both Code and non-Code offenses as crimes, disorderly persons offenses or petty disorderly persons offenses, the "crime" designation reserved for those offenses subject to a term of imprisonment in excess of six months. Title 24 offenses are obviously so classifiable and were intended to be so classified.
The second level of classification is provided for by N.J.S.A. 2C:43-1, applicable not to all offenses but only to crimes. Subsection a of that provision classifies crimes as being of the first, second, third, or fourth degree. It is clear, however, that crime-degree classification, in contradistinction ...