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State v. Tremblay

New Jersey Superior Court, Law Division

April 8, 1982


MacKenzie, J.s.c.


[185 NJSuper Page 138] This opinion expands the oral decision denying the State's motion to have defendant sentenced for possession of a controlled dangerous substance as a persistent offender under the Code of Criminal Justice ("Code").*fn1 The issue is whether defendant is subject to the extended term of imprisonment authorized for a persistent offender by N.J.S.A. 2C:43-7(a)(4). There is, of course, a provision in the Controlled Dangerous Substances Act (Title 24) for an enhanced penalty in the case of a second or subsequent drug conviction. N.J.S.A. 24:21-29(a).*fn2 The resolution

[185 NJSuper Page 139]

of this issue requires an analysis of the interrelationship between the sentencing provisions of the Code and of Title 24.

The facts are simple and uncontroverted. Defendant was found guilty by a jury of possession of two controlled dangerous substances, marijuana and cocaine.*fn3 His prior adult record is comprised of convictions for burglary, larceny, receiving stolen motor vehicle, malicious damage to property, theft of a motor vehicle, possession of 25 grams or less of marijuana and for being under the influence of a controlled dangerous substance.

Defendant does not qualify for the doubled penalties which may be imposed for a second or subsequent Title 24 offender because his prior drug convictions are within the exception proviso of N.J.S.A. 24:21-29. The increased penalty does not apply if an earlier conviction is for the disorderly person offenses of possession of marijuana,*fn4 or for being under the influence of a controlled dangerous substance.*fn5 On the other hand, he would clearly qualify as a persistent criminal offender if the present possession offense is the kind of "crime" referred to in N.J.S.A. 2C:44-3(a). I hold that it is not because of the legislative scheme to distinguish between sentencing maxima for Code crimes and those for Title 24 offenses.

When the criminal laws of this state were revised and enacted into the Code, the Legislature specifically excepted Title 24 from codification. The Legislature no doubt accepted the reasoning that it would be "inappropriate to change them [ Title

[185 NJSuper Page 140]

24] again so soon after enactment." 2 Final Report of the New Jersey Criminal Law Revision Commission. Commentary at 312. As if to emphasize the distinction, the Legislature then amended the original form of N.J.S.A. 2C:43-1(b) prior to the Code's effective date of September 1, 1979. See L. 1978, c. 95, ยง 2C:43-1. To ensure that certain but not all sentencing provisions of the Code were to apply to Title 24 convictions, the following sentence was added to the Code:

A sentence imposed upon violation of the "New Jersey Controlled Dangerous Substances Act" shall be governed by this subtitle but shall be subject to the maximum sentence authorized for the relevant offense under said act, or if there is no specific penalty under the act, by imprisonment for not more than 3 years or a fine of not more than $1,000.00 or both, in the case of a misdemeanor or other indictable offenses, or by imprisonment for not more than 6 months or a fine of not more than $500,000 or both, in the case of a nonindictable offense [emphasis supplied]*fn6

Thus, the maxima for Title 24 offenses continued to apply for drug offenses.

At the same time N.J.S.A. 2C:1-5(b) was amended to provide that the sentencing provisions of the Code apply to non-Code offenses except as to the maximum penalty which may be imposed.*fn7 The purpose of these two amendments was to make clear that sentences for Title 24 convictions are to be imposed in the same manner as are sentences under the Code in regard to such aspects as the requirement of a finite term;*fn8 the weighing of aggravating and mitigating circumstances;*fn9 presumption of nonincarceration for certain offenders*fn10 and the consequences of multiple sentences,*fn11 but that the maximum term of imprisonment

[185 NJSuper Page 141]

provided for by Title 24 remained in full force and effect.*fn12

With this history in mind, the statutory language is plain and the legislative intent unmistakable. Except as above noted, sentences for a possessory violation under Title 24 must be in conformity with the provisions of that statute. Likewise, imposition of an enhanced penalty for a drug offense must be under the authority of Title 24, not the Code. Thus, an individual convicted of a drug offense is liable for punishment only up to the normal, or enhanced, sentence maxima authorized by Title 24.

As noted above, defendant would not be eligible for sentencing to an enhanced sentence under N.J.S.A. 24:21-29(a) despite his two prior Title 24 convictions. The State did not move for imposition of such a Title 24 sentence; rather, it sought application of the enhanced penalty section of the Code. The present Title 24 possessory offense, however, is not encompassed within the meaning of "crime" as used in N.J.S.A. 2C:44-3(a). There is no specific provision in the Code by which legislature repeals N.J.S.A. 24:21-29(a). Nor can any such intention to repeal be implied.

The State's motion to have defendant sentenced to an enhanced term of imprisonment is denied because N.J.S.A. 2C:43-7 does not apply on these facts, and because defendant is exempt

[185 NJSuper Page 142]

from sentencing pursuant to N.J.S.A. 24:21-29(a) as a repetitive drug offender.

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