[246 NJSuper Page 201] The Appellate Division held, in State in the Interest of W.M., 237 N.J. Super. 111, 567 A.2d 217 (App.Div.1989), that "the mere conviction under N.J.S.A. 2C:5-2 for the 'ordinary' crime of conspiracy does not render a person subject to the mandatory penalties of the Comprehensive Drug Reform Act, even if the object of that conspiracy constitutes a Chapter 35 offense." Id. at 118, 567 A.2d 217. This motion presents the related
question of whether the mandatory penalties authorized by the Comprehensive Drug Reform Act are applicable to adjudications under a charge of complicity pursuant to N.J.S.A. 2C:2-6 when the offense for which a person is to be held legally accountable constitutes a chapter 35 offense. For the reasons expressed in the foregoing opinion, the court holds that the mandatory penalties authorized by chapter 35 are applicable to convictions or adjudications based on a charge of complicity under N.J.S.A. 2C:2-6.
On December 7, 1989, defendant, Louis Bram, entered a retraxit plea of guilty to count two of Monmouth County indictment number 89-10-1781, charging him with complicity to distribute a controlled dangerous substance in violation of N.J.S.A. 2C:2-6. The charge states as follows:
COMPLICITY TO DISTRIBUTE A CONTROLLED
DANGEROUS SUBSTANCE -- THIRD DEGREE CRIME
The Grand Jurors of the State of New Jersey, for the County of Monmouth, upon their oaths present that LOUIS MARK BRAM on or about the 21st day of July, 1989, in the and about the Borough of Belmar, County of Monmouth and within the jurisdiction of this Court, did commit the crime of complicity to distribute Cocaine, a controlled dangerous substance, in that, with the purpose of promoting or facilitating the commission of said offense, he aided or agreed or attempted to aid NELSON TORRES in the distribution of Cocaine, contrary to the provisions of N.J.S.A. 2C:2-6, and against the peace of this State, the Government, and dignity of the same.
Defendant's plea was entered pursuant to a plea agreement by which the State agreed to dismiss the remaining five counts of the indictment against defendant.
On February 9, 1990, this court imposed upon defendant a five-year probationary term on count two. As part of defendant's sentence, this court imposed a $1,000 drug enforcement demand reduction (D.E.D.R.) penalty pursuant to N.J.S.A. 2C:35-15a, a six-month postponement of his driving privileges
pursuant to N.J.S.A. 2C:35-16, and a $50 forensic laboratory fee pursuant to N.J.S.A. 2C:35-20.
On February 26, 1990, defendant filed a notice of motion to amend this sentence pursuant to R. 3:21-10. Defendant contends that the mandatory penalties under the Comprehensive Drug Reform Act of 1986, N.J.S.A. 2C:35-1 et seq., referred to above, are not applicable to convictions or adjudications based upon complicity liability since complicity is solely defined in chapter 2 of the Criminal Code. Defendant relies upon the holding in State in the Interest of W.M., supra, and incorporates the arguments set forth therein by reference. Based upon W.M., defendant seeks an order to omit the D.E.D.R. penalty and driver's license revocation pursuant to R. 3:21-10.
The State opposes defendant's motion and seeks to distinguish the holding in W.M. from the present situation. The State argues that, unlike the crime of conspiracy which may stand independently as a specific crime, see State v. Cormier, 46 N.J. 494, 501, 218 A.2d 138 (1966), the crime of complicity is entirely dependent on the substantive offense. Relying upon State v. White, 98 N.J. 122, 484 A.2d 691 (1984), the State submits the following:
By definition an accomplice must be a person who acts with the purpose of promoting or facilitating the commission of the substantive offense for which he is charged as an accomplice. II The New Jersey Penal Code: Final Report of the New Jersey Criminal Law Revision Commission 57 (1971) observes that "one is 'legally accountable' for the conduct of another when he is an 'accomplice' of another person in the offense." By "the offense" is meant that offense charged for which guilt is in question under subsection 2C:2-6a. [ Id. at 129, 484 A.2d 691]
Because complicity necessarily contemplates a "purpose of promoting or facilitating the commission of the substantive offense for which [defendant] is charged as an accomplice," ibid., the State argues that the mandatory penalties are applicable where the substantive offense for which ...