On appeal from the Superior Court, Law Division, Hudson County.
Matthews, J. H. Coleman and Gaulkin. The opinion of the court was delivered by Matthews, P.J.A.D.
On January 25, 1982, defendant was sentenced to a five to seven year term for a weapons possession offense. His sentence was suspended and he was placed on a five year probationary term. While on probation, defendant was charged in an indictment, later amended, with conspiracy, possession of controlled dangerous substances with intent to distribute, unlawful possession of a machine gun and firearm silencer and receiving stolen property.
He was held in lieu of $100,000 bail on the subsequent charges and committed without bail pending determination of the new charges pursuant to N.J.S.A. 2C:45-3(a)(3). His application for bail for violation of probation was denied. We granted defendant's motion for leave to appeal nunc pro tunc and for leave to appeal.
In denying defendant's application for bail pursuant to N.J.S.A. 2C:45-3(a)(3), the Law Division judge noted that his decision
was discretionary and that the statute does not mandate that a defendant charged with a violation of probation be held without bail. The judge found that defendant was "entitled to bail" on the new charges and that he had set bail "appropriate to insure that the defendant would appear at appropriate times and places." He also found that N.J.S.A. 2C:45-3(a)(3) relates not "to the likelihood of the defendant showing up when he's supposed to," but to "the defendant having been found guilty of a crime and having been placed on probation" and "apparently [having] violated that probation." Thus he exercised his discretion under the statute and determined that "as part of the probation end of this thing there would be no bail" and that defendant would not be permitted "to walk the streets on probation" while these new charges were pending.
The statute under consideration, N.J.S.A. 2C:45-3(a)(3), provides:
a. At any time before the discharge of the defendant or the termination of the period of suspension or probation:
(3) The court, if there is probable cause to believe that the defendant has committed another offense or if he has been held to answer therefor, may commit him without bail, pending a determination of the charge by the court having jurisdiction thereof.
Defendant fits within the language of this statute because he had not been discharged from probation nor had his period of probation been terminated when he was "held to answer" for "another offense." He urges, however, that the statute is in conflict with, and must defer to, N.J. Const. (1947), Art. I, § 11, which provides:
No person shall, after acquittal, be tried for the same offense. All persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses when the proof is evident or presumption great.
The constitutional provision upon which defendant relies does not, by its terms, apply to him. Defendant stands convicted of unlawful possession of ...