On appeal from the Superior Court, Law Division, Essex County.
Gaulkin, Brody and Landau. The opinion of the court was delivered by Gaulkin, P.J.A.D.
We hold here that defendant's assertion of the privilege against self-incrimination bars his disorderly persons conviction under N.J.S.A. 2C:35-10c:
Any person who knowingly obtains or possesses a controlled dangerous substance or controlled substance analog in violation of [ N.J.S.A. 2C:35-10a, prohibiting possession of any controlled dangerous substance without a prescription] and who fails to voluntarily deliver the substance to the nearest law enforcement officer is guilty of a disorderly persons offense. Nothing in this subsection shall be construed to preclude a prosecution or conviction for any other offense defined in this title or any other statute.
Defendant was arrested by inspectors of the Alcoholic Beverage Control Enforcement Bureau in a backroom of a Newark tavern, where he was seen removing something from his pocket which he dropped on the floor. One of the inspectors retrieved the object, which turned out to be a folded $5 bill containing a white powdery substance, stipulated at trial to be .86 grams of cocaine. Defendant was indicted for third-degree possession of cocaine (N.J.S.A. 2C:35-10a(1)), but the State later downgraded the charge to the N.J.S.A. 2C:35-10c disorderly persons offense.
Following a bench trial before a Law Division Judge, defendant was found guilty and sentenced to a one-year suspended term. However, on defendant's motion, the Judge arrested the judgment (R. 3:21-9), concluding that N.J.S.A. 2C:35-10c unconstitutionally infringed on the privilege against self-incrimination. The State appealed to the Law Division, where a second Law Division Judge reinstated the conviction, finding that the statute is constitutional if read to provide for "use and fruits" immunity. Defendant appeals from the judgment thereupon entered.
We first reject defendant's argument that the State's appeal to the Law Division should have been dismissed because this court was the correct appellate venue. In the first hearing, the Law Division Judge was sitting as a municipal court Judge. Cf. State v. DeLuca, 108 N.J. 98, 110-111, 527 A.2d 1355 cert. denied, 484 U.S. 944, 108 S. Ct. 331, 98 L. Ed. 2d 358 (1987);
State v. Natoli, 237 N.J. Super. 52, 566 A.2d 1167 (App.Div.1989). The State's appeal from the post-conviction order was properly to the Law Division. R. 3:23-1. Moreover, if the appeal were misdirected, the remedy would have been to transfer the appeal from the Law Division to the Appellate Division. R. 1:13-4. By whatever route, the issues would be before us.
Defendant's central contention is that N.J.S.A. 2C:35-10c impermissibly "compels individuals to give evidence or 'testimony' to the State that would undoubtedly lead to prosecution for ...