On Appeal from the Superior Court, Appellate Division, whose opinion is reported at 180 N.J. Super. 190 (1981).
For affirmance -- Chief Justice Wilentz, Justices Pashman, Clifford, Schreiber, Handler, Pollock and O'Hern. For reversal -- None. The opinion of the Court was delivered by Wilentz, Chief Justice.
Respondent, Ronald Collins, was indicted for possession of cocaine in violation of N.J.S.A. 24:21-20. He applied for pretrial intervention (PTI) pursuant to N.J.S.A. 2C:43-12 et seq. of the Code of Criminal Justice (Code). The prosecutor denied the application, taking the position that Collins was ineligible for diversion because of a previous conviction of a controlled dangerous substance offense. The prosecutor's position was based on the belief that the absolute bar against diversion of second offenders contained in Section 27 of the Controlled Dangerous Substances Act (CDS Act) applied to Collins' application under the Code. The trial court permitted pretrial intervention despite the prosecutor's denial, holding that there was "a suggestion of an abuse of discretion." The Appellate Division reversed, concluding that pretrial diversion under the Code is not automatically barred for second offenders despite the bar of the CDS Act, but that the trial court's admission of Collins into PTI over the objection of the prosecutor was based on an insufficient record.
We affirm the judgment below. We agree with the Appellate Division's perceptive analysis and in particular agree that the Court, when it revised R. 3:28 simultaneously with the adoption of the Code intended to substantially conform that Rule to the pretrial intervention provisions of the Code. See R. 3:28(a) (designation of judge to act on PTI matters "in accordance with N.J.S.A. 2C:43-12 and -13"); R. 3:28(b) and (c) (role of program director and prosecutor; maximum period of diversion). This appeal does not involve any conflict between the Code and this Court's revised PTI Guidelines, despite the difference between them concerning the availability of pretrial diversion to second offenders. Given the nature of Collins' prior conviction (simple possession), it would not appear to make any difference whether the standards of the Code or of the Guidelines were to be applied. Compare Guideline 3(e) with N.J.S.A. 2C:43-12(a). See also State v. Collins, 180 N.J. Super. 190, 196, 198 (App.Div.1981).
The conflict here, if any, is solely between the Code's pretrial intervention provisions and the conditional discharge sections of the CDS Act, in particular N.J.S.A. 24:21-27.*fn1 These two statutes clearly provide for two separate pretrial diversion procedures. The Code's procedures are general and, on their face, applicable to all offenses; the CDS Act is most limited, applicable only to certain drug offenses, namely those of a personal nature involving possession and use. The Code explicitly preserves the pretrial diversion procedures of the CDS Act.*fn2 The conflict arises because the CDS Act clearly provides that a person, like Collins, previously convicted of a narcotics offense may never again be diverted under that Act, whereas the Code contains no such prohibition. We must determine whether the Legislature, through the Code, intended to make pretrial intervention available under the Code to drug offenders who were, and are, ineligible under the CDS Act because they are second offenders.
The CDS Act stood for approximately nine year as the only statute providing for pretrial diversion. It permits such diversion only of those who have not previously been convicted or diverted under that Act and only for the offenses mentioned above, namely possession or use of drugs (including being under the influence of drugs). The negative effect of the section is clear: no second offender is to be given conditional discharge, no one previously diverted is to be given conditional discharge, and no one accused of non-personal offenses, for instance, the manufacture, sale or distribution of drugs, is to be conditionally
discharged.*fn3 These prohibitions are part of a legislative policy embodied in a comprehensive criminal code for controlled dangerous substances offenses. That policy would run head on into any statute that permitted pretrial diversion, under any name, of drug offenders where the CDS Act did not. In short, standing alone, the comprehensive CDS Act does not tell us solely who may be diverted and under what circumstances, but who must not be.
Despite the comprehensiveness of the CDS Act, we have concluded that the Legislature intended to change that policy when it adopted the Code. The Legislature's treatment of pretrial intervention in N.J.S.A. 2C:43-12 et seq., is all-encompassing, seeming to respond to this Court's invitation to occupy the field. State v. Leonardis, 73 N.J. 360, 374-375 (1977) (Leonardis II). It was aware of that part of the field in which the CDS Act operated: it explicitly mentions Section 27 in two places (N.J.S.A. 2C:43-12(g) and -22). With the various restrictions and limitations of Section 27 of the CDS Act therefore clearly in mind, the Legislature enacted a comprehensive pretrial intervention system that directly conflicted with two of the three restrictions of the CDS Act. It declared generally, and without exception, that second offenders "ordinarily" would be ineligible, whereas the CDS Act absolutely foreclosed eligibility to drug offenders on a second offense. This declaration under the Code can be regarded as one of its most important policy pronouncements, occurring prominently at the beginning of its provisions. Secondly, the Code makes pretrial intervention
available for all offenses, there are no exceptions provided, whereas the CDS Act pretrial diversion is confined very narrowly to offenses involving use and possession of controlled dangerous substances. These considerations alone persuasively suggest that the Legislature intended thereby to make pretrial intervention available under the Code's procedures to those who would be barred under the restrictive scope of the CDS Act. The conclusion is made all but irresistible by the Legislature's explicit acceptance of the one remaining restriction of the CDS Act, that prohibiting re-enrollment. The Code in Section 12(g), explicitly referring to the CDS Act's Section 27, bars re-enrollment for anyone previously enrolled either under the Code or under the CDS Act. The Legislature's intent not to apply CDS Act diversion ineligibility for second offenders and non-personal offenses to Code PTI is thus demonstrated by its explicit incorporation of one, and only one, CDS Act ineligibility factor into the Code, namely re-enrollment ineligibility.
The Code therefore made pretrial intervention available under its procedures to those charged with their second drug offense or with non-personal drug offenses; pretrial diversion remained unavailable to such defendants under the procedures of the CDS Act. Re-enrollment, ...