Following a jury trial, defendant James A. Merritt was convicted of first degree possession with intent to distribute cocaine, a controlled dangerous substance, in violation of N.J.S.A. 2C:35-5(b)(1). Said statute provides that a person who possesses cocaine or other controlled dangerous substances:
The initial question is whether the Court can sentence a defendant, who is convicted of a first degree offense, as a second degree offender pursuant to N.J.S.A. 2C:44-1(f)(2):
In cases of convictions for crimes of the first or second degree where the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands, the court may sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted.
N.J.S.A. 2C:1-1(e) of the Code of Criminal Justice provides that, "The provisions of the code not inconsistent with those of prior laws shall be construed as a continuation of such laws." The Official Commentary to the Comprehensive Drug Reform Act of 1986 (Laws 1987, Chapter 106) (hereinafter referred to as the Act) issued by the Assembly Judiciary Committee on November 23, 1987, in referring to said statutory provision of the Code, states that, "This act is not intended to overrule or supersede all current statutory or case law. Rather, this legislation embraces the penal code's general approach . . ." Id. at p. 13.
Had the Legislature intended the court's discretion to sentence one degree lower to have been eliminated under the Act, it would have so specified. Where the term of sentence, as well as the mandatory parole ineligibility, is mandated, the Legislature has expressly so stated. For example, in N.J.S.A. 2C:35-6, entitled "Employing a Juvenile in a Drug Distribution Scheme," the Act provides that the defendant shall:
See also, N.J.S.A. 2C:35-3, entitled "Leader of Narcotics Trafficking Network," and N.J.S.A. 2C:35-7, entitled "Distributing Drugs on School Property."
For reasons spread on the record on September 16, 1988, the Court is clearly satisfied that the mitigating factors substantially outweigh the aggravating factors in the case at bar. Therefore, in the interest of justice, the Court exercises its discretion under N.J.S.A. 2C:44-1(f)(2) to reduce the degree from first to second for sentencing purposes, in accordance with the general sentencing scheme of the Code of Criminal Justice.
The second question presented is whether the Court must impose a period of parole ineligibility when sentencing the defendant as a second degree offender. A crime of the second
degree under N.J.S.A. 2C:35-5(b)(2) does not carry with it a period of parole ineligibility. The discretion of the Court in imposing a period of parole ineligibility is ordinarily ...