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State v. Garcia

Decided: April 21, 1989.

STATE OF NEW JERSEY, PLAINTIFF,
v.
ISABEL GARCIA, DEFENDANT



Sachar, J.s.c.

Sachar

[236 NJSuper Page 574] Defendant comes before the court for sentencing pursuant to a plea agreement which provides for a non-custodial sentence. Defendant pled guilty to possession of a controlled dangerous substance with intent to distribute, under N.J.S.A. 2C:35-5(a)(1) and -5(b)(1) of the Comprehensive Drug Reform Act (L. 1987, c. 106)

hereinafter referred to as "the act." N.J.S.A. 2C:35-5 grades the degree of the offense by the quantity of the controlled dangerous substances involved. Defendant possessed with the intent to distribute 35 ounces of cocaine. Five ounces or more of cocaine constitutes a first degree offense, which carries with it a mandatory period of parole ineligibility. Offenses for lesser quantities of controlled dangerous substances under this section do not carry with them mandatory periods of parole ineligibility.

Section 2C:35-5b(1) of the act states, in pertinent part:

The defendant shall, except as provided in N.J.S. 2C:35-12, be sentenced to a term of imprisonment by the court. The term of imprisonment shall include the imposition of a minimum term which shall be fixed at, or between, one-third and one-half of the sentence imposed, during which the defendant shall be ineligible for parole. Notwithstanding the provisions of subsection a. of N.J.S. 2C:43-3, a fine of up to $300,000.00 may be imposed.

Other serious offenses under the act also contain mandatory periods of parole ineligibility. The controlling section governing mandatory penalties, wherever found in the act, is N.J.S.A. 2C:35-12, which requires that the court impose these mandatory penalties,

Unless the defendant has pleaded guilty pursuant to a negotiated agreement or, in cases resulting in trial, the defendant and the prosecution have entered into a post-conviction agreement.

In this case the prosecutor has, by way of plea agreement, waived the mandatory period of parole ineligibility (albeit, not for reasons of cooperation with the prosecutor to secure information), but has not negotiated a sentence in compliance with a first degree offense. A first degree offense carries with it a term of 10- to 20-years imprisonment, N.J.S.A. 2C:43-6(a)(1), with a presumption of imprisonment, N.J.S.A. 2C:44-1(d).

It is contended that the act not only permits the prosecutor to waive the mandatory period of parole ineligibility, but that the prosecutor may also relax the sentencing guidelines of the Code of Criminal Justice if the prosecutor and the defendant so agree. Support for this proposition is sought in N.J.S.A. 2C:35-12, which states,

that the plea agreement may provide for a specified term of imprisonment within the range of ordinary or extended sentences authorized by law, a specified period of parole ineligibility, a specified fine, or other disposition. [Emphasis supplied]

Interpretation of the phrase 'other disposition' is a matter of first impression. The sentence begins with a "term of imprisonment within the range of ordinary or extended sentences authorized by law." Emphasis supplied. The Legislature has thus seen fit to make clear that any such term be in accordance with sentencing criteria authorized by law. Such verbiage is not to be considered as mere surplusage. See Matter of Sussex County Mun. Utilities Authority, 198 N.J. Super. 214 (App.Div.1985), quoting Hackensack Bd. of Ed. v. Hackensack, 63 N.J. Super. 560, 569 (App.Div.1960); accord Gabin v. Skyline Cabana Club, 54 N.J. 550, 555 (1969). The remainder of the sentence, which refers to other sentencing dispositions that may be included in the plea agreement, includes a period of parole ineligibility or a fine. It is clearly within the sentencing guidelines of the act to include, reduce or eliminate the period of parole ineligibility, as well as to assess a fine or not. The sentencing dispositions enumerated are all consistent with the sentencing guidelines of the code. Other dispositions that are similarly within the guidelines readily come to mind -- for example, restitution, and dropping an offense one degree for sentencing purposes if the court makes the requisite findings. See N.J.S.A. 2C:44-1(f)(2); State v. Merritt, 230 N.J. Super. 211 (Law Div., 1988). The court accordingly applies the rule of statutory construction, ejusdem generis,

The phrase "other disposition" should be construed in light of the previously enumerated phrases, which are consistent with the ...


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