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State in Interest of W.M.

Decided: August 16, 1989.

STATE OF NEW JERSEY IN THE INTEREST OF W.M., A JUVENILE


Shebell, Gruccio and Landau. The opinion of the court was delivered by Gruccio, J.A.D.

Gruccio

[237 NJSuper Page 112] W.M., a juvenile, appeals from an adjudication of delinquency based on conduct which if committed by an adult would have

constituted a conspiracy to distribute cocaine, N.J.S.A. 2C:5-2, and from the imposition of the mandatory penalties under the Comprehensive Drug Reform Act of 1986, N.J.S.A. 2C:35-1, et seq. He specifically challenges the $1,000 Drug Enforcement and Demand Reduction (DEDR) penalty, N.J.S.A. 2C:35-15; the six-month postponement of driving privileges, N.J.S.A. 2C:35-16, and the $25 forensic laboratory fee, N.J.S.A. 2C:35-20. W.M. makes four separate constitutional challenges to the penalties and one statutory challenge.

On appeal he contends:

1. The imposition of a Drug Enforcement and Demand Reduction (DEDR) penalty, a forensic laboratory fee and a six-month suspension of driving privileges is illegal since the juvenile was convicted only of conspiracy.

2. N.J.S.A. 2C:35-15 is unconstitutional because the mandatory DEDR penalties discriminate against those juveniles adjudicated delinquent for drug offenses while all other juveniles adjudicated delinquent for non-drug offenses are not exposed to mandatory fines.

3. N.J.S.A. 2C:35-15 which provides for mandatory DEDR penalties to be imposed on all persons convicted of or adjudicated delinquent for offenses enumerated in the Comprehensive Drug Reform Act of 1986, N.J.S.A. 2C:35-15, et seq., is fundamentally unfair as applied to juveniles.

4. N.J.S.A. 2C:35-15 which provides for mandatory DEDR penalties to be imposed upon juveniles adjudicated delinquent for committing drug offenses is cruel and unusual punishment. U.S. Const., Amend. VIII; N.J. Const. (1947), Art. I, para. 12.

5. N.J.S.A. 2C:35-15 and N.J.S.A. 2C:35-16 violates Article 4, Section VII, Paragraph 5 of the New Jersey Constitution.

W.M.'s constitutional challenges were recently considered and rejected by us in State in the Interest of L.M., 229 N.J. Super. 88 (App.Div.1988), and State v. Ogar, 229 N.J. Super. 459 (App.Div.1989). Accordingly, we reject defendant's allegations for the reasons expressed by us in the above opinions.

W.M.'s statutory challenge presents issues that we have not yet addressed. He contends that the mandatory penalties authorized by N.J.S.A. 2C:35-15, N.J.S.A. 2C:35-16 and N.J.S.A. 2C:35-20 apply only to adjudications of delinquency (or convictions) for offenses defined by Chapters 35 and 36 of the Criminal Code. He asserts that these penalties do not apply to

his adjudication based on conspiratorial conduct since conspiracy is defined solely in Chapter 5. The State contends that the legislative intent was to deter not only actual use or sale of controlled dangerous substances, but also the promotion or facilitation of such unlawful acts. According to the State, the underlying offense which is the object of a conspiracy is always "incorporated by reference" into the Chapter 5 charge. The State, therefore, contends, that Chapter 35 penalties apply so long as the conspiracy violation incorporates a ...


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