On appeal from Superior Court, Law Division, Somerset County.
Petrella, Shebell and Gruccio. The opinion of the court was delivered by Petrella, P.J.A.D.
These appeals involve the issue of whether a defendant has a right to require sentencing under the Comprehensive Drug Reform Act of 1986 (CDRA) when the offenses involved occurred prior to that act's effective date. Since both defendants were the subject of the same indictment and the same issues are involved in both appeals we hereby consolidate them for purposes of this opinion.
Defendant Aldo Velez entered a guilty plea to nine counts in an indictment directed against him as follows: one count of conspiracy to distribute a controlled dangerous substance (cocaine); two counts of distribution of a controlled dangerous substance; three counts of possession of a controlled dangerous substance; two counts of possession of a controlled dangerous substance with intent to distribute; and one count of obstructing the administration of the law.
Codefendant James Negvesky entered a retraxit plea of guilty to the indictment charging him with one count of conspiracy to distribute a controlled dangerous substance; one count of distribution of a controlled dangerous substance; three counts of possession of a controlled dangerous substance; and three counts of possession of a controlled dangerous substance with intent to distribute.
The sentencing judge declined to sentence Velez and Negvesky
under the Comprehensive Drug Reform Act of 1986.*fn1 Velez was sentenced on November 13, 1987 to concurrent five year terms of imprisonment, two years without parole eligibility, on each of the drug related charges. He was also sentenced to a concurrent 18 month term of imprisonment on his conviction for obstructing the administration of the law. Velez was fined $3,000 on the conspiracy conviction. Violent Crimes Compensation Board penalties aggregating $270 were assessed.
On that same date, the judge merged the conviction for possession with intent to distribute with the conviction for distribution of a controlled dangerous substance and sentenced Negvesky to concurrent five year terms of imprisonment on the convictions on the remaining counts, two years without parole eligibility. In addition, Negvesky was fined $3,000 and Violent Crimes Compensation Board penalties aggregating $210 were assessed.
On their appeals,*fn2 the defendants argue:
I. They have a right to election of sentencing under N.J.S.A. 2C:35-1 et seq.
II. Even under the provisions of N.J.S.A. 24:1-1 et seq., they should have been entitled to a noncustodial sentence.
III. The mitigating factors in this instance substantially outweigh the aggravating factors and accordingly, the presumption of non-incarceration has not been overcome.
IV. A period of parole ineligibility was not warranted in this instance.
The facts relating to the indictment and convictions may be briefly stated. The Somerset County prosecutor's office received information in February 1987 that several savings bank
employees were involved in the use and distribution of cocaine. As a result, an undercover investigation was conducted at the particular bank where these activities were suspected to be taking place. The investigation revealed that Velez and Negvesky, as well as two others, were involved in a plan to sell cocaine. Ultimately, these individuals were arrested and indicted on charges of conspiracy, possession and distribution of cocaine.
Negvesky entered his retraxit plea of guilty to all charges on September 28, 1987. When his plea was entered Negvesky admitted knowing all of the codefendants except Velez. He acknowledged that between February 17 and March 20, 1987 he either had conversations with or had made plans with another codefendant, Georgette Specht, and a person who turned out to be an undercover police officer, relating to the sale of cocaine to that officer. Negvesky admitted selling a gram of cocaine to the undercover police officer on February 28, 1987 and meeting with his brother Thomas Negvesky (also a codefendant) and that officer on March 20, 1987 in order to make another sale. On that latter date they ...