On appeal from the Superior Court, Law Division, Somerset County.
Dreier, Scalera and D'Annunzio. The opinion of the court was delivered by Scalera, J.A.D.
[238 NJSuper Page 447] Pursuant to a plea agreement, defendant David G. Todd pleaded guilty to two counts of distribution of drugs, two
counts of distribution of drugs within 1000 feet of a school, two counts of possession of drugs with intent to distribute and two counts of possession of drugs, in violation of N.J.S.A. 2C:35-5a(1), N.J.S.A. 2C:35-7, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-10a(1) respectively. The State recommended an aggregate minimum sentence of five years of imprisonment with two years of parole ineligibility.
The trial judge merged the offenses of possession and possession with intent to distribute into the distribution charges and imposed concurrent sentences of five years imprisonment with a two year parole disqualifier on the remaining four convictions. He also imposed mandatory penalties of $1,000 on each count pursuant to N.J.S.A. 2C:35-15, but imposed the mandatory laboratory fee of $50 pursuant to N.J.S.A. 2C:35-20a only on two of the convictions.
The defendant appeals, raising various constitutional challenges to certain sections of the Comprehensive Drug Reform Act of 1986, N.J.S.A. 2C:35-1 et seq., and alleging that:
Point I: N.J.S.A. 2C:35-14 is unconstitutional in that it violates the separation of powers clause of the State constitution by removing the power to place a defendant in a drug rehabilitation program unless the prosecutor consents.
Point II: N.J.S.A. 2C:35-7 and 2C:35-12 penalizes the exercise of constitutional rights and operate to coerce guilty pleas and are therefore unenforceable.
Point III: N.J.S.A. 2C:35-12 violates the separation of powers clause of the State constitution by removing sentencing power from the judiciary and delegating to the prosecutor the authority to fix sentences.
Point IV: N.J.S.A. 2C:35-7 and 2C:35-14 violate the State and federal constitutional provisions against the imposition of cruel and unusual punishments.
Point V: N.J.S.A. 2C:35-7 violates the State and federal constitutional prohibition against double jeopardy.
Point VI: N.J.S.A. 2C:35-7 violates the equal protection clause of the United States Constitution and New Jersey Constitution.
The State has cross-appealed, contending that the trial judge erred in merging the convictions for possession with intent to distribute drugs with the convictions for distribution thereof and in imposing a laboratory fee penalty on only two of the convictions.
There is no dispute that defendant was involved in the sale of cocaine to an undercover police officer on the grounds of the Somerset County Vocational Technical High School on February 23 and 26, 1988.
The arguments raised by defendant in Points II, IV, V and VI have been considered and rejected by this court and the Law Division. See State v. Blow, 237 N.J. Super. 184, 567 A.2d 253 (App.Div.1989); State v. Ogar, 229 N.J. Super. 459, 551 A.2d 1037 (App.Div.1989); State v. Brown, 227 N.J. Super. 429, 437-438, 547 A.2d 743 (Law Div.1988); State v. Morales, 224 N.J. Super. 72, 81-83, 539 A.2d 769 (Law Div.1987). We see no reason to address them any further here.
The two remaining issues warrant a fuller discussion. Defendant pleaded guilty to two counts charging violations of N.J.S.A. 2C:35-7, which, insofar as is pertinent here, provides:
Any person who violates subsection a. of N.J.S. 2C:35-5 by distributing, dispensing or possessing with intent to distribute a controlled dangerous substance or controlled substance analog while on any school property used for school purposes which is owned by, or leased to any elementary or secondary school or school board, or within 1,000 feet of such school property or school bus, or while on any school bus, is guilty of a crime of the third degree and shall, except as provided in N.J.S. 2C:35-12, be sentenced by the court to a term of imprisonment. . . . [N.J.S.A. 2C:35-7, emphasis added.]
Thus, the exception to a mandatory jail sentence is set forth in N.J.S.A. 2C:35-12 states:
Whenever an offense defined in this chapter specifies a mandatory sentence of imprisonment which includes a minimum term during which the defendant shall be ineligible for parole, or a mandatory extended term which includes a period of parole ineligibility, the court upon conviction shall impose the mandatory sentence 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, which provides for a lesser sentence or period of parole ineligibility. The negotiated plea or post-conviction 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. In that event, the court at sentencing shall not impose a lesser term of imprisonment, period of parole ineligibility or fine than that expressly provided for under the terms of the plea or post-conviction agreement. [ N.J.S.A. 2C:35-12, emphasis added.]
Defendant argues that N.J.S.A. 2C:35-12 impermissibly deprives the court of the power to impose a lesser sentence than that expressly negotiated between a defendant and the prosecutor in the plea agreement or post-conviction agreement. In other words, the statute violates the separation of powers provision of the State Constitution by removing the sentencing authority from the judiciary and delegating such authority to the prosecutor. See N.J. Const. (1947), Art. III, par. 1. Defendant specifically argues that when N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-12 are read and applied together, "[t]he judiciary has no discretion regarding sentencing, but the prosecutor can decide if the accused should be incarcerated, the length of the term, whether parole ineligibility will be imposed, and even the amount of the fine."
As a corollary, defendant similarly attacks the constitutionality of N.J.S.A. 2C:35-14 which provides:
a. Notwithstanding the presumption of incarceration pursuant to the provisions of subsection d. of N.J.S. 2C:44-1, and except as provided in subsection b. of this section, whenever a drug dependent person is convicted of an offense under N.J.S. 2C:35-5, N.J.S. 2C:35-6, section 1 of P.L.1987, c. 101 (C. 2C:35-7), N.J.S. 2C:35-10, N.J.S. 2C:35-11, or N.J.S. 2C:35-13, other than a crime of the first degree, the court, upon notice to the prosecutor, may, on motion of the defendant and where the court finds that no danger to the community will result and that the placement will serve to benefit the defendant by serving to correct his or her dependency on controlled substances, place the defendant on probation which shall be for a term of five years. As a condition of that probation, the court shall order the defendant to enter a drug rehabilitation program, subject to such other reasonable terms and conditions as may be required by the court and by law, pursuant to N.J.S. 2C:45-1, and which shall include periodic urine testing for drug usage throughout the period of probation.
b. Except upon the joint application of the defendant and the prosecuting attorney, no person convicted of an offense under N.J.S. 2C:35-6 or section 1 of P.L.1987, c. 101 (C. 2C:35-7), or who has been previously convicted of an offense under subsection a. of N.J.S. 2C:35-5 or a similar offense under any other law of this State, any other state or the United States, shall be eligible for sentence in accordance with this section. [ N.J.S.A. 2C:35-14a and 14b, emphasis added.]
Under N.J.S.A. 2C:35-14a the court may sentence a defendant convicted of certain drug offenses to a rehabilitation program if the defendant ...