On certification to the Superior Court, Appellate Division, whose opinion is reported at 229 N.J. Super. 305 (1988).
For modification and affirmance -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None.
We granted defendant James Negvesky's petition for certification, 117 N.J. 79, 563 A.2d 839 (1989), to resolve a conflict between Appellate Division panels over whether a defendant who committed a criminal drug offense before the effective date of the Comprehensive Drug Reform Act of 1986 (CDRA), N.J.S.A. 2C:35-1 to -23, has the absolute right to demand to be sentenced under the more structured provisions of this new Act.
N.J.S.A. 2C:35-23 of the CDRA states in pertinent part:
c. In any case pending on or initiated after the effective date of this act involving an offense defined herein and committed prior to such date:
(2) The court, with the consent of the defendant, may impose sentence under the provisions of this chapter applicable to the offense and the offender * * *.
Defendant construes this provision to mean "that it is the defendant's option to be sentenced under the CDRA and that the sentencing court does not have the discretion to deny such a request."
We agree with the opinion of the panel below, 229 N.J. Super. 305, 551 A.2d 540 (1988), that the plain language of the Act confers discretion on the sentencing court to sentence under either Act, provided that the defendant consents to any ex post facto application of the provisions of the new Drug Reform Act. It is clear to us that although the court may not sentence a transitional defendant under the CDRA without his consent, logic does not compel the opposite proposition that the court must sentence a transitional defendant under the CDRA if the defendant chooses that option. The limited contrary holding in State v. Toro, 229 N.J. Super. 215, 551 A.2d 170 (App.Div.1988), certif. denied, 118 N.J. 216, 570 A.2d 973 (1989), in which the court gave that defendant the option of being sentenced under the CDRA, is disapproved.
Because our grant of certification was unlimited, we have considered as well the merits of defendant's challenge to his sentence. Defendant contends that his aggregate sentence of five years in prison with a two-year parole disqualifier for the crimes of conspiracy, possession of cocaine (three counts), possession of cocaine with intent to distribute (three counts), and distribution of cocaine is excessive. The State counters that defendant's sentence, which is within statutory bounds, is completely proper.
Defendant complains of what he characterizes as a local rule of sentencing (that every drug sale draws imprisonment regardless of the balance of aggravating and mitigating factors in the
case); the lack of an adequate factual basis for a finding of aggravating factor N.J.S.A. 2C:44-1a(5) or of the likelihood that defendant was engaged in "organized criminal activity"; and an improper denial of a presumption of imprisonment under N.J.S.A. 2C:44-1b(7), on the basis of a ...