On appeal from the Superior Court, Law Division, Monmouth County.
Furman, Brody and Scalera. The opinion of the court was delivered by Furman, P.J.A.D.
Defendant was convicted of distribution of a controlled dangerous substance in violation of N.J.S.A. 24:21-19a(1), following a retraxit plea of guilty, and was sentenced to an eight-year term of imprisonment subject to a four-year term of parole ineligibility.
On appeal from the denial of his petition for post-conviction relief, R. 3:22, defendant raises two issues, the first statutory and the second constitutional:
Point I: Defendant-appellant's period of parole ineligibility is illegal because such terms are not statutorily authorized on sentences pursuant to New Jersey's Controlled Dangerous Substances Act.
Point II: The Code provisions allowing the imposition of parole ineligibility terms on Title 24 offenses violate Article IV, Section VII, Paragraph 5 of the New Jersey Constitution. (Not raised below)
The issues raised by defendant will be nonrecurring. The Legislature has amended the Code of Criminal Justice (Code), N.J.S.A. 2C:1-1 et seq., by repealing and incorporating into the Code what had been the Controlled Dangerous Substances Act
(CDS), N.J.S.A. 24:21-1 et seq. Comprehensive Drug Reform Act of 1986, L. 1987, c. 106.
Both issues are rejected. N.J.S.A. 2C:43-1b expressly provides that a sentence, such as defendant's, imposed for a violation of CDS "shall be governed" by Subtitle 3, Sentencing, of the Code, except as to degrees of crimes and "subject to the maximum sentence authorized for the . . . offense" under CDS. Defendant's custodial sentence of eight years did not exceed the twelve-year maximum term provided in CDS upon conviction for a violation of N.J.S.A. 24:21-19a(1). In imposing the parole disqualifier of one-half of that eight-year sentence pursuant to N.J.S.A. 2C:43-6b, the trial judge did not increase defendant's maximum sentence contrary to N.J.S.A. 2C:43-1b; he applied another sentencing option authorized by the Code upon sentencing "for any crime," including CDS offenses.
As the Supreme Court held in State v. Sainz, 107 N.J. 283, 286-287 (1987) in applying the sentencing guidelines of N.J.S.A. 2C:44-1 to CDS offenders:
The sentencing provisions of the Code of Criminal Justice (Code), N.J.S.A. 2C:1-1 to 98-4, are generally applicable to Controlled Dangerous Substances Act ...