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State v. Telcher

Decided: March 10, 1987.

STATE OF NEW JERSEY, PLAINTIFF,
v.
JANICE TELCHER, DEFENDANT



Newman, J.s.c.

Newman

This is a motion by defendant, Janice Telcher, for a suspension of proceedings and conditional discharge pursuant to N.J.S.A. 24:21-27. Telcher was indicted for violating N.J.S.A. 24:21-22(a)(3) by obtaining controlled dangerous substances by fraud. The pertinent facts in this case are as follows.

Janice Telcher is a registered nurse who was employed by the University of Medicine and Dentistry of New Jersey (UMDNJ) in 1985. Her duties at the hospital included dispensing prescription drugs to patients. Six patients complained to Telcher's supervisor that they had not received prescribed pain medication at various times between September 1 and October 31, 1985. The supervisor reviewed the narcotics sheet and found that Telcher had signed for, but failed to dispense, 12 Percodan tablets and 8 codeine tablets. This matter was subsequently reported to the police.

Telcher voluntarily waived her rights and admitted taking the Percodan and codeine tablets for her own personal use. She stated that, at the time, she was under severe emotional and physical stress caused by problems at work, her personal life and an illness. There is some disagreement as to the exact

number of tablets taken by Telcher, however this is not significant for the purposes of this motion.

Telcher's license to practice nursing was temporarily suspended on September 12, 1986 by the New Jersey State Board of Nursing pending a formal hearing. This hearing was held on October 31, 1986. The board noted that Telcher had been drug free for over one year and that her past use of drugs appeared to be an isolated episode. However, it concluded that she had "used poor judgment and dishonesty and deception to divert and use the drugs in the course of her nursing practice." Consequently, her license was temporarily suspended and she was placed on probation for two years while still being allowed to practice nursing.

On November 25, 1986, Janice Telcher was indicted under N.J.S.A. 24:21-22(a)(3) for obtaining controlled dangerous substances by fraud. Her application for admission into a pretrial intervention program (PTI) was denied by the Essex County Prosecutor's Office under the guidelines set forth in N.J.S.A. 2C:43-12(e)(1) and R. 3:28. In considering the nature of Telcher's offense, the prosecutor found that "[t]he strong public interest in feeling safe with those charged with the care and welfare of the public has been breached." The prosecutor thought that, given the nature of Telcher's acts, she had not presented compelling reasons justifying her admission into PTI, and concluded that the value of supervisory treatment was outweighed by the public need for prosecution. The decision of the prosecutor in not recommending her for enrollment in PTI was subsequently affirmed by this court. Telcher now seeks a conditional discharge under N.J.S.A. 24:21-27.

The question before this court is whether a defendant charged with a violation of N.J.S.A. 24:21-22(a)(3) rather than a violation of N.J.S.A. 24:21-20 is eligible for a suspension of proceedings and conditional discharge under N.J.S.A. 24:21-27. The benefits of the conditional discharge provision are available to first offenders charged with simple possession or use of

controlled dangerous substances. Telcher was charged with a violation of N.J.S.A. 24:21-22(a)(3) which proscribes obtaining possession of a controlled dangerous substance by misrepresentation, fraud, forgery, deception or subterfuge. This court must determine if the benefits of a conditional discharge should be extended to her even though her offense does not fall within the express terms of the statute.

Telcher, relying on State v. Sanders, 169 N.J. Super. 596 (Law Div.1979), argues that she should be eligible for conditional discharge consideration because the offense with which she is charged is treated less severely by way of a sentencing maximum of three years than the offense of possession or use of certain drugs, which has a sentencing exposure of five years. Given the statutory goal of rehabilitation, defendant reasons that the inclusion of this type of offense promotes the legislative purpose of § 27.

In addressing defendant's argument and the opinion in Sanders, several factors have to be considered. First, a close examination of the language of the conditional discharge statute, as well as the legislative history and intent underlying it, is in order. Second, this court must adhere to the construction guidelines applicable to the statute as set forth in State v. Collins, 90 N.J. 449 (1982), and interpret § 27 accordingly. Finally, attention must be given to whether any policy reasons justify extending the availability of conditional discharges beyond the scope of the express language of N.J.S.A. 24:21-27 as other courts of equal jurisdiction have done.

In interpreting the conditional discharge statute, the court must utilize basic principles of statutory construction. One cardinal principle is that in the absence of a clear indication to the contrary, the words used in a statute are to be given their plain, ordinary and commonly understood meaning. Fahey v. City of Jersey City, 52 N.J. 103 (1968). The court must also act in furtherance of the purpose and goal of the statute. State v. Madden, 61 N.J. 377 (1972). In this regard, consideration

of the statutory history is relevant in discerning the legislative intent underlying the statute. Id. at 389. The instant matter requires such an examination of the language and legislative intent of N.J.S.A. 24:21-27 in order to resolve this motion.

The language of the conditional discharge provision, N.J.S.A. 24:21-27, expressly states when a suspension of criminal proceedings under the Controlled Dangerous Substances Act, N.J.S.A. 24:21-1 et seq., ...


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