On appeal from Superior Court of New Jersey, Law Division, Bergen County.
Brody, Gaynor and Baime. The opinion of the court was delivered by Baime, J.A.D.
Defendant appeals from a conviction of possession of a controlled dangerous substance in violation of N.J.S.A. 24:21-20a(1). The sole argument advanced on appeal is that the trial judge erred when he denied defendant's motion to suspend the proceedings and grant supervisory treatment under N.J.S.A. 24:21-27. We disagree and affirm.
We need not recount the facts at length. On November 17, 1982 defendant was arrested by a member of the Hillsdale Police Department. A subsequent search revealed five packets of cocaine amounting to .69 grams. Following his arrest, defendant freely admitted to the police officer that he "was a cocaine dealer." Pursuant to an agreement with the State, defendant entered a plea of guilty to an accusation charging him with possession of a controlled dangerous substance. In return for his plea and his promise of assistance in future investigations, the State agreed not to object to his application for conditional discharge under N.J.S.A. 24:21-27.
It was later discovered, however, that defendant had been admitted into a pretrial intervention program pursuant to R. 3:28 in 1974 following his arrest for possession of a stolen automobile. After successful completion of the program, defendant's charge for that offense had been dismissed. Despite the State's promise not to object to defendant's admission into a supervisory treatment program under N.J.S.A. 24:21-27, the prosecutor argued that the application was barred by N.J.S.A. 2C:43-12g.*fn1 That provision states that "[s]upervisory treatment, whether under this section or under [ N.J.S.A. 24:21-27], may occur only once with respect to any defendant. . . ." The trial judge agreed that defendant's prior enrollment in a pretrial intervention program served to bar him from a conditional
discharge under N.J.S.A. 24:21-27. The judge alternatively decided that defendant was not a fit candidate for diversion because his presence in the program would pose a danger to the community. The latter conclusion was predicated upon defendant's failure to rehabilitate himself following completion of the pretrial intervention program in 1974 and reliable evidence presented disclosing aspects of commerciality in his possession of the cocaine.
Initially, we are in complete accord with the trial judge's determination that defendant's prior participation in a pretrial intervention program precluded him from applying for suspension of proceedings and conditional discharge. Of course, we recognize that "read literally, N.J.S.A. 2C:43-12g does not [bar] eligibility of an offender who was previously diverted under R. 3:28." State v. Collins, 180 N.J. Super. 190, 205 n. 3 (App.Div.1981), aff'd 90 N.J. 49 (1982). We further acknowledge that N.J.S.A. 24:21-27b does not expressly prohibit diversion where the applicant has previously participated in a pretrial intervention program. Nevertheless, we are fully convinced that in enacting N.J.S.A. 2C:43-12g our Legislature intended to bar enrollment by anyone previously diverted under the Code of Criminal Justice, the Controlled Dangerous Substances Act or R. 3:28.
We stress that we are not concerned here with any conflict between the Code and our Supreme Court's pretrial intervention guidelines. While we acknowledge that pretrial intervention Guideline 3(g) as it read at the time of the commission of the offense merely inveighed against a second diversion by saying that persons previously enrolled pursuant to R. 3:28 or N.J.S.A. 24:21-27 "should not ordinarily be re-enrolled," Pressler, Current N.J. Court Rules, Comment R. 3:28, Guideline 3(g) (1982), that provision was subsequently modified. It currently creates an absolute bar against re-enrollment. Pressler,
Current N.J. Court Rules, Comment R. 3:28 Guideline 3(g) (1986). In any event, defendant's application was for conditional discharge under N.J.S.A. 24:21-27. He did not apply for admission into a pretrial intervention program under R. 3:28.
Stripped to its essentials, the issue here is one of legislative intent. Specifically, we must determine whether the Legislature, by omitting any reference to R. 3:28 in its prohibition against re-enrollment, intended to permit an applicant to be conditionally discharged notwithstanding his prior ...