[202 NJSuper Page 544] This case requires the court to decide if the presumption against imprisonment applies to a defendant who is the subject
of a pending direct appeal and who is awaiting sentencing on other criminal matters.
Defendant, Ariel Rodriquez, was convicted of possession with intent to distribute controlled dangerous substances as a result of two separate trials on two separate indictments. The substances possessed were doriden and empirin with codeine, and each conviction carried a five year maximum sentence. N.J.S.A. 24:21-19(b)(3). At the time of sentencing following the first trial, the presumption against imprisonment clearly applied, see N.J.S.A. 2C:44-1(e); State v. Sobel, 183 N.J. Super. 473 (App.Div.1982), and defendant received a probationary sentence. He filed a timely direct appeal, which is now pending. Defendant is also awaiting sentencing following the second guilty verdict for possession with intent to distribute. Defendant was acquitted of similar charges at a trial conducted between the two matters resulting in convictions.
After the third trial and the second adverse verdict, defendant pled guilty to the charge of possession of controlled dangerous substances, doriden and empirin with codeine, embodied in another indictment. Another count of that indictment, charging possession of the substances with intent to distribute, and another indictment charging similar offenses are recommended for dismissal as a result of the negotiated plea disposition. R. 3:9-3.
N.J.S.A. 2C:44-1(e) provides:
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 a 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 [ N.J.S.A. 2C:44-1]a.
When a defendant is convicted of a Title 24 offense with a maximum sentence of five years or less, the presumption against imprisonment embodied in N.J.S.A. 2C:44-1(e) clearly applies. State v. Sobel, supra. The question in this case is whether the presumption applies given the prior adverse verdicts
where one matter is on direct appeal and the other will be pending sentence or subject to a timely direct appeal at the time of scheduled sentencing in this case. The issue arises in light of N.J.S.A. 2C:44-4(a) and (b), which provide:
a. Prior conviction of an offense. An adjudication by a court of competent jurisdiction that the defendant committed an offense constitutes a prior conviction.
b. Prior conviction of a crime. An adjudication by a court of competent jurisdiction that the defendant committed a crime constitutes a prior conviction, although sentence or the execution thereof was suspended, provided that the time for appeal has expired and the defendant was not pardoned on the ground of innocence.
A crime is one type of "offense," and defendant has been found guilty of two separate crimes. See ...