On appeal from the Superior Court of New Jersey, Law Division, Warren County.
Michels, Long and Muir, Jr. The opinion of the court was delivered by Michels, P.J.A.D.
The significant issue posed by this appeal is whether a mandatory Drug Enforcement and Demand Reduction (DEDR) penalty may be assessed, pursuant to N.J.S.A. 2C:35-15a, against a defendant who has been charged with drug offenses and subsequently is admitted into a Pretrial Intervention (PTI) program.
The record shows that on August 11, 1988, New Jersey State Troopers Salamone and Moyna were on a routine check of the westbound rest area of Interstate Route 80 in Allamuchy Township. While driving past defendant Paul Dominic Bulu's parked automobile, the troopers noticed defendant look at them, bow his head and then duck down in the passenger seat leaving only the top of his head visible. When the troopers approached defendant's car to question him about his actions, they noticed that his voice was muffled and that he had a bulge in his cheek. The troopers also observed a package of "rolling papers' between the seat belt coil and the headliner of the car.
Defendant was ordered out of his car and told to open his mouth. Inside defendant's mouth, the troopers observed a clear plastic bag containing what was later determined to be 0.46 grams of marijuana. Defendant spit the bag into his hands and then tore it open, scattering most of its contents. Defendant was placed under arrest and the passenger compartment of the vehicle was searched. Inside the center console the troopers found a marijuana pipe and a film canister holding a clear plastic bag containing what was later determined to be 0.33 grams of cocaine. A buck knife was found between the driver's seat and the door and a butterfly knife was found in the glove compartment. Defendant consented to a search of
the remainder of the vehicle and no additional contraband was recovered.
Three separate complaints were issued against defendant. The first complaint charged defendant with (1) possession of a controlled dangerous substance, to wit, cocaine, in violation of N.J.S.A. 2C:35-10a(1) (First Count); (2) possession of a buck knife without any explainable lawful purpose, in violation of N.J.S.A. 2C:39-3e (Second Count), and (3) possession of a butterfly knife without any explainable lawful purpose, in violation of N.J.S.A. 2C:39-3e (Third Count). The second complaint charged defendant with suppression, by way of concealment or destruction, of evidence of a crime which might aid in the discovery or apprehension of such person or in the lodging of a charge against him, in violation of N.J.S.A. 2C:29-3a(3). The third complaint charged defendant with (1) possession of a controlled dangerous substance, to wit, less than 50 grams of marijuana, in violation of N.J.S.A. 2C:35-10a(4) (First Count), and (2) possession of narcotics paraphernalia, in violation of N.J.S.A. 2C:36-2 (Second Count).
Defendant was accepted into the Warren County PTI Program and further criminal proceedings were postponed for one year. Shortly thereafter, defendant was advised that two conditions to his admission into PTI inadvertently had been omitted from the Order of Postponement. Specifically, defendant was informed that the Order of Postponement failed to indicate that he was required to pay a mandatory $1,000 DEDR penalty pursuant to N.J.S.A. 2C:35-15a(3) and two $50 forensic laboratory analysis fees pursuant to N.J.S.A. 2C:35-20a. After a hearing, the trial court denied defendant's request for relief and ruled that payment of DEDR penalty and laboratory fees were a condition of defendant's admission into PTI. We granted defendant leave to appeal and stayed payment of the DEDR
penalty and fees pending disposition of the appeal.*fn1
Defendant seeks a judicial declaration that the portion of N.J.S.A. 2C:35-15 that mandates the imposition of a DEDR penalty upon individuals placed into supervisory treatment pursuant to N.J.S.A. 2C:43-12 is unconstitutional, and an order relieving him of the obligation to pay such penalty. Defendant first contends that the imposition or assessment of a DEDR penalty against him violates procedural and substantive due process of law. Specifically, he claims that DEDR penalties are punitive in nature and, therefore, may not be imposed absent a finding of guilt beyond a reasonable doubt. We disagree.
N.J.S.A. 2C:35-15 of the Comprehensive Drug Reform Act of 1986, N.J.S.A. 2C:35-1 et seq., provides:
a. In addition to any disposition authorized by this title, the provisions of section 24 of P.L.1982, c. 77 (C. 2A:4A-43), or any other statute indicating the dispositions that can be ordered for an adjudication of delinquency, every person convicted of or adjudicated delinquent for a violation of any offense defined in this chapter or chapter 36 of this title shall be assessed for each such offense a penalty fixed at:
(1) $3,000.00 in the case of a crime of the first degree;
(2) $2,000.00 in the case of a crime of the second degree;
(3) $1,000.00 in the case of a crime of the third degree;
(4) $750.00 in the case of a crime of the fourth degree;
(5) $500.00 in the case of a disorderly persons or petty ...