On appeal from the Superior Court, Appellate Division.
For reversal -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler and O'Hern. For affirmance -- Justices Pashman and Pollock. The opinion of the Court was delivered by O'Hern, J. Pashman, J., dissenting. Justice Pollock joins in this dissent.
[89 NJ Page 6] This case concerns the standard of appellate review in "conditional discharge" cases under Section 27 of the New Jersey Controlled Dangerous Substances Act, N.J.S.A. 24:21-1 et seq.
On November 13, 1976, the Pennsville police arrested defendant, David E. Humphreys, after a search of his home turned up 27.34 grams of marijuana and .28 grams of hashish. The police were acting on a warrant they had secured based on information received from an informant, Robert Caldwell. On the day before the search, Caldwell had solicited a buy of narcotics from Humphreys and had allegedly bought one ounce of marijuana. At the time of these events Humphreys had been a mathematics teacher at a Pennsville high school for three years. Caldwell was a twenty-year-old former pupil of his.
Following his arrest, Humphreys was charged in separate indictments with possession and sale of a controlled dangerous substance. One indictment accused defendant of distributing one ounce of marijuana to Caldwell, in violation of N.J.S.A. 24:21-19 a(1). Defendant's jury trial on this charge resulted in an acquittal.
A separate indictment charged Humphreys with possession of 27.34 grams of marijuana. Possession of less than 25 grams of marijuana is treated as a disorderly persons offense but possession of any amount over 25 grams constitutes an indictable offense. N.J.S.A. 24:21-20 a(4).
Defendant pleaded guilty to the possession charge and applied for a conditional discharge pursuant to N.J.S.A. 24:21-27. Sentencing was set for June 23, 1978. The presentence report on Humphreys disclosed, inter alia, the following: he was 32 years of age, had no prior juvenile or adult record and no prior arrests; he was a decorated veteran with 14 months service in Viet Nam; he admitted prior use of drugs which began in college and increased during his tour of duty in Viet Nam; he further admitted having grown marijuana for personal use, although it was stolen before harvest, and he advocated the legalization of marijuana.
The trial judge denied the motion for a conditional discharge and sentenced the defendant to the Salem County Jail for six months, suspended all but 30 days, placed the defendant on
probation for one year and fined him $200. The defendant appealed both the denial of his motion and his sentence. The Appellate Division affirmed the denial of the motion for conditional discharge but found the sentence excessive and modified it to eliminate the county jail term. Defendant then petitioned this Court for certification of the conditional discharge issue. We granted certification on May 24, 1979, summarily reversed the judgment of the Appellate Division and remanded the case to the trial court "for reconsideration in light of this Court's opinions in State v. Bender [80 N.J. 84 (1979)] . . ., State v. Maddocks [80 N.J. 98 (1979)] . . ., State v. Sutton [80 N.J. 110 (1979)] . . ., and most particularly, State v. Hermann & Jones [80 N.J. 122 (1979)] . . ., all of which were decided this day." State v. Humphreys, 81 N.J. 269, 269-70 (1979).
The same trial judge conducted a new hearing and again denied defendant's motion for conditional discharge. The court essentially adhered to the reasoning that had initially led it to refuse defendant's request. In a written opinion, the trial judge articulated three reasons for his decision.
First, the court cited Humphreys' occupation as a public school teacher, although there was no evidence that defendant's personal association with drugs involved his current students or his official duties. Next, the trial court ruled that Humphreys' admission into a conditional discharge program was precluded because defendant "was dealing in marijuana" or was otherwise involved in the distribution of narcotics. In support of this finding, the trial judge, who had also presided over Humphreys' distribution trial, referred to three pieces of evidence produced at the earlier proceeding. They were a tape recording of a conversation with Caldwell in which Humphreys made references to drug dealing, testimony alluding to an unsuccessful attempt by defendant to cultivate a six-foot by six-foot garden of marijuana, and defendant's admission to having given one capsule of valium to Caldwell. Finally, the trial judge took "judicial notice" of community anxiety over Humphreys' drug involvement, noting that "because of his position as a school
teacher, organized groups of parents have threatened to keep their children out of school rather than permit them to attend his classes."
Humphreys again sought relief from the Appellate Division. This time, in a per curiam opinion, the Appellate Division reversed the denial, holding that the trial court had abused its discretion by taking "judicial notice" of community anxiety about Mr. Humphreys, by improperly evaluating Humphreys' alleged ongoing drug involvement and by basing its denial on other inappropriate or irrelevant factors, such as defendant's occupation as a teacher.
Judge Fritz dissented, stating that the majority had overemphasized the importance of the trial judge's reliance on the defendant's occupation and public outrage, and concluded that while the "conviction of the trial judge overflowed his pen . . . [this] should not be permitted to distract us from the correctness of the determination. . . ."
The case comes before this Court on the State's appeal as of right. R. 2:2-1(a). We now reverse.
N.J.S.A. 24:21-27 authorizes the "conditional discharge" of criminal proceedings against certain first-time drug offenders. This provision was enacted in 1970 following adoption of R. 3:28 on pretrial intervention (PTI). These programs have been conceptually intertwined ever since, although various characteristics distinguish the two. Unlike PTI, conditional discharge is a legislative creation, it is directed solely at use related drug offenses and it may be invoked without prosecutorial consent or recommendation.*fn1
Former Governor Cahill summarized the purpose of this legislation in a special message to the Legislature:
The proposed [controlled dangerous substances] act takes a first legislative step at recognizing the use of drugs as a social and medical illness. Thus with respect to persons charged with use or possession of any dangerous drug for the first time, the act confers upon the court, new discretionary authority to defer criminal proceedings and to impose a special term of probation. If the conditions of probation are met, the court may then dismiss the proceedings. In order that youthful first offenders are not saddled with a lifetime arrest record, the act provides for an immediate expungement of records with respect to arrests. ["Drug Abuse -- Problem of the Decade," Special Message of Governor William Cahill to the Legislature, April 27, 1970.]
Should the trial judge decide to grant a conditional discharge, proceedings against a defendant will be suspended, N.J.S.A. 24:21-27 a(1). If a defendant has already been found guilty or entered a plea, judgment of conviction will not be entered, N.J.S.A. 24:21-27 a(2). If the terms of treatment are violated, proceedings may be recommenced or judgment of conviction entered. If the treatment is satisfactorily completed, proceedings will be dismissed, N.J.S.A. 24:21-27 b. Proceedings against a person may be terminated under this section only once, N.J.S.A. 24:21-27 b.
To qualify for consideration for a conditional discharge, a defendant must have no prior drug convictions after the effective date of the act and be charged with, convicted of, or plead guilty to no more than possession, use or being under the influence of small amounts of drugs. N.J.S.A. 24:21-27 a.
An application for conditional discharge may not be approved unless the trial judge finds that the defendant's presence in the community will not threaten the public safety or that the defendant will benefit from participation in a supervisory drug treatment program, the terms of which provide for the protection of the public. N.J.S.A. 24:21-27 c, which imposes this requirement, states that:
Proceedings under this section shall not be available to any defendant unless the court in its discretion concludes that
(1) The defendant's continued presence in the community, or in a civil treatment center or program, will not pose a danger to the community; or
(2) That the terms and conditions of supervisory treatment will be adequate to protect the public and will benefit the defendant by serving to correct any dependence on or use of ...