SUPERIOR COURT OF NEW JERSEY LAW DIVISION - UNION COUNTY CRIMINAL.
Defendant pled guilty on the same day to two indictments, each of which charged defendant with the crimes of possession of CDS, occurring on separate dates. Defendant now moves this court for a conditional discharge from both charges.
The conditional discharge statute, N.J.S.A. 24:21-27a, provides:
Whenever any person who has not previously been convicted of any offense under the provisions of this act . . . is charged with or convicted of any offense under . . . 24:21-20, the court . . . may . . .
(2) After plea of guilty or finding of guilty . . . place him on supervisory treatment. . . .
The State objects to the granting of a conditional discharge on both of the charges, arguing that defendant may only receive the benefit of the statute for one of the offenses, but not for both.
The question presented is whether a defendant is eligible for a conditional discharge when he enters simultaneous pleas to separate offenses, each of which occurred on a different date.
It is axiomatic that in construing the application of a statute, a court should look first to the plain meaning of the words used in the statute in order to determine legislative intent. DeHart v. Bambrick, 177 N.J. Super. 541 (App.Div.1981). The words, "not previously been convicted," do not lend themselves to interpretation. They have a clear and plain meaning which evince the legislative intent that only those persons who have previously been convicted will be ineligible for diversion. There is little doubt that if the Legislature had intended to exclude persons who have committed a previous offense, as well as persons who have a previous conviction, it would have said so. It is well settled that in the determination of legislative intent, the court should assume that the Legislature was aware of prior judicial construction given to certain words and phrases when it adopted the statute. State v. McCormick, 104 N.J.L. 288 (Sup.Ct.1928). The word "offense" and the word "conviction," along with the impact and effect of those words when used in a statute, have regularly been the subject of judicial analysis. See State v. McCall, 14 N.J. 538 (1954) (analyzing the Legislature's use of the words "convicted" and "offense" in construing the application of the former habitual criminal statute); see also State v. Deckert, 69 N.J. Super. 105 (1961) (holding that the change in the wording of the drunk driving statute [ N.J.S.A. 39:4-50] from "conviction" to "violation" evinced legislative intent to expand application of enhanced penalty). It is clear, therefore, that when the Legislature used the words "previous conviction" in the conditional discharge statute, its intention was to limit ineligibility to only those persons who have been previously convicted of a prior offense under the drug laws. Defendant in this case does not have such a prior conviction. At best, his simultaneous pleas can be characterized as simultaneous convictions, see State v. Compton,
28 N.J. Super. 45, 48 (App.Div.1953), neither of which could possibly be considered as being prior to the other.
The case of State v. Anderson, 186 N.J. Super. 174 (App.Div.1982), aff'd 93 N.J. 14 (1983), which dealt with a statute containing similar language, is supportive of this conclusion. In that case, the court addressed the question of whether an enhanced penalty must be imposed under the sex offender statute (N.J.S.A. 2C:14-6) which provides for an enhanced penalty when "a person is convicted of a second or subsequent offense." In Anderson, supra, defendant entered simultaneous pleas to separate offenses which had occurred on different dates. The court held that the imposition of an ...