On appeal from the Superior Court, Law Division, Union County, whose opinion is reported at 212 N.J. Super. 714 (La. Div. 1986).
Furman and Shebell. The opinion of the court was delivered by Shebell, J.A.D.
The State appeals on leave granted, the diversion of defendant, Harold Gray, over the objection of the State, to conditional discharge status pursuant to N.J.S.A. 24:21-27 on two possessory drug guilty pleas.
The defendant was seen by police on February 5, 1986 on a street in Elizabeth to have his hand outstretched towards another person. Upon his observing an unmarked police unit, defendant dropped his hand and closed it into a fist. He was arrested after it was discovered that he was holding four plastic vials with red tops containing a white substance suspected
to be cocaine -- "crack." According to the police report included in the State's appendix to its brief, he was arrested at that time for possession of cocaine with intent to distribute. A search of his pants pockets revealed a ziplock bag containing a white powder suspected to be CDS and two $20 bills. On May 27, 1986 he was indicted for simple possession of cocaine in connection with this incident.
On April 12, 1986, approximately nine weeks after his first apprehension, he was again arrested after being found in possession of cocaine in "crack" form. On June 3, 1986 an accusation was filed relating to that incident charging him with possession of cocaine. On that same day defendant entered guilty pleas to both the indictment and the accusation in accordance with a plea bargain. Under the agreement the State agreed to recommend that the sentences on each crime run concurrently with each other and that the sentences be probationary terms with all conditions of probation available to the court. This was understood to mean that the defendant would be subject to up to 364 days in the county jail as a condition of his probationary terms.
When defendant appeared for sentencing the court sua sponte raised the possibility of defendant's being entitled to § 27 treatment. The court asked the attorneys to supply briefs on the issue and to appear on a later date. While the transcript of the later proceedings on July 3, 1986 refers to a motion for § 27 disposition, the court minutes do not note the filing of any formal motion in either case and we have not been supplied with copies of the motions. The written opinion of the trial court states that the "[d]efendant now moves this court for a conditional discharge from both charges." State v. Gray, 212 N.J. Super. 714, 715 (Law Div.1986).
The State urges that the Law Division judge erred in ruling that defendant was eligible for diversion under N.J.S.A. 24:21-27 for two separate drug offenses, committed at separate times, noting that it was only fortuitous that defendant pled
guilty to both at the same time and was appearing for sentencing for both on the same date. The applicable statutory provision is as follows:
Whenever any person who has not previously been convicted of any offense under the provisions of this act or, . . . under any law of the United States, this State or any other state, relating to narcotic drugs, marijuana or stimulant, depressant or hallucinogenic drugs, is charged with or convicted of any offense under section 20 of P.L. 1970, c. 226 (C. 24:21-20), the court, upon notice to the prosecutor and subject to subsection c. of this section, may on motion of the defendant or the court:
(1) Suspend further proceedings and with the consent of such person after reference to the State Bureau of Identification criminal history record information files, place him under supervisory treatment upon ...