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State v. Reevey

Decided: October 7, 1986.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
CHARLES REEVEY, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.

Michels and Landau. The opinion of the court was delivered by Michels, P.J.A.D.

Michels

Following plea negotiations, defendant Charles Reevey pleaded guilty to (1) two counts charging him with distribution of heroin and cocaine in violation of N.J.S.A. 24:21-19a(1) (Count Three and Count Twelve of Indictment No. 684-4-84) and (2) two counts charging him with distribution of cocaine in violation of N.J.S.A. 24:21-19a(1) (Count Six of Indictment No. 684-4-84 and Count Three of Indictment No. 932-6-84). The State, for its part of the plea agreement, recommended that the aggregate custodial sentences to be imposed upon defendant not exceed a maximum of 15 years and that the remaining criminal charges in both indictments be dismissed.

In accordance with the plea agreement, defendant was committed to the custody of the Commissioner of the Department of Corrections for 12 years with a minimum parole ineligibility period of six years for distribution of cocaine under Count Three of Indictment No. 932-6-84. In addition, he was sentenced

to concurrent 12 year terms, with minimum parole ineligibility periods of six years on Counts Three, Six and Twelve of Indictment No. 684-4-84. These latter terms were to run concurrently with the sentence imposed under Count Three of Indictment No. 932-6-84. Defendant's motion for reconsideration of his sentences on the ground that the imposition of parole ineligibility terms was illegal was denied and this appeal followed.

Defendant seeks a vacation of his sentences and a remand to the trial court for resentencing. He claims that the trial court erred in imposing the sentences and in denying his subsequent motion for reconsideration for the following reasons set forth in his brief:

POINT I BY REASON OF VAGUENESS AND UNCERTAINTY, THE RECENT AMENDMENT TO N.J.S.A. 2C:43-6b, AS IT APPLIES TO TITLE 24 OFFENSES AND THE PAROLE ACT OF 1979 IS REPUGNANT TO THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION.

POINT II THE TWELVE YEAR PRISON SENTENCE WITH SIX YEARS OF PAROLE INELIGIBILITY IMPOSED UPON DEFENDANT WAS UNREASONABLE, MANIFESTLY EXCESSIVE AND SHOCKING TO THE JUDICIAL CONSCIENCE.

We have carefully considered these contentions and all of the arguments advanced by defendant in support of them and find that they are clearly without merit. R. 2:11-3(e)(2). However, some further comment is necessary with respect to defendant's contention that his sentences are illegal due to the imposition of the six year parole ineligibility terms.

I.

Defendant claims that the imposition of the parole ineligibility terms was unwarranted and that the trial court erred in relying on N.J.S.A. 2C:43-6b by imposing these terms as part of his sentences for violating the "New Jersey Controlled Dangerous Substances Act," N.J.S.A. 24:21-1 et seq. (Title 24). However, defendant does not primarily attack the trial court's reliance on N.J.S.A. 2C:43-6b. Instead, he raises a constitutional

challenge to this statute, asserting that it "is ambiguous in its meaning, vague and therefore offends fundamental principles of due process as set forth in the Fourteenth Amendment of the United States Constitution."

N.J.S.A. 2C:43-6b, upon which the trial court relied in imposing the parole ineligibility terms, provides:

As part of a sentence for any crime, where the court is clearly convinced that the aggravating factors substantially outweigh the mitigating factors, as set forth in subsections a. and b. of 2C:44-1, the court may fix a minimum term not to exceed one-half of the term set pursuant to subsection a., or one-half of the term set pursuant to a maximum period of incarceration for a crime set forth in any statute other than this code, during which the defendant shall not be eligible for parole; provided that no defendant shall be eligible for parole at a date earlier than otherwise provided by the law governing parole . . . [Emphasis supplied].

Preliminarily, we point out that prior to the amendment of N.J.S.A. 2C:43-6b, effective February 12, 1981, by L. 1981, c. 31, § 1, this statute provided:

As part of a sentence for a crime of the first or second degree and notwithstanding the provision of 2C:43-9, the court may fix a minimum term not to exceed one-half of the term set pursuant to subsection a. during which the defendant shall not be eligible for parole provided that no defendant shall be eligible for parole at a date earlier than otherwise provided by the law governing parole. [ L. 1979, c. 178, § 85, effective September 1, 1979 (Emphasis supplied)].

In this form, N.J.S.A. 2C:43-6b permitted imposition of a period of parole ineligibility only with respect to sentences for first or second degree crimes under the Code. However, by the February 12, 1981 amendment, the Legislature substituted the words "any crime" for "a crime of the first or second degree" and added the phrase "or one-half of the term set pursuant to a maximum period of incarceration for a crime set forth in any statute other than this code," to the parole ineligibility provisions of N.J.S.A. 2C:43-6b. See L. 1981, c. 31, § 1, effective February 12, 1981 (adopting these changes). This language currently appears in the statute and is directly applicable in this case. The application of the sentencing provisions of the Code dealing with parole eligibility to Title 24 offenses is no longer in question. In State v. Flippen, 208 N.J. Super. 573, 576

(App.Div.1986), we specifically held that N.J.S.A. 2C:43-6b applies to sentencing under Title 24 and that a parole ineligibility term for a Title 24 offense was legal. See also State v. Sobel, 183 N.J. Super. 473, 479 n. 1 (App.Div.1982); State v. Guzman, 199 N.J. Super. 346, 351 n. 3 (Law Div.1985). Thus, there was statutory authority to support the ...


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