On certification to the Superior Court, Appellate Division, whose opinion is[Table] (1992).
For reversal and reinstatement -- Chief Justice Wilentz, and Justices O'Hern, Garibaldi and Stein. For affirmance -- Justices Clifford, Handler and Pollock. The opinion of the Court was delivered by Stein, J. Pollock, Justice, Dissenting. Justices Clifford and Handler join in this opinion.
In this appeal we consider the constitutionality of N.J.S.A. 2C:35-10c, which provides:
Any person who knowingly obtains or possesses a controlled dangerous substance or controlled substance analog in violation of subsection a. of this section 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.
The Law Division concluded that N.J.S.A. 2C:35-10c violated defendant's privilege against self-incrimination because it requires defendant to surrender to police tangible evidence establishing his possession of a controlled dangerous substance in violation of N.J.S.A. 2C:35-10a. However, that court preserved the statute's constitutionality by construing it to confer use and derivative-use immunity on any person who complies with its mandate. The Law Division concluded that its interpretation was not inconsistent with the Legislature's intent in enacting the statute.
Although the Appellate Division agreed that the statute conflicted with defendant's privilege against self-incrimination, 256 N.J. Super. 413, 417-18, 607 A.2d 191 (1992), it disagreed that a grant of use and derivative-use immunity was consistent with the legislative intent, id. at 420-21, 607 A.2d 191. The Appellate Division concluded that the last sentence of subsection c -- "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" -- precluded a grant of immunity. Id. at 421-22, 607 A.2d 191. The court reversed defendant's conviction, holding that his proper assertion of the privilege against self-incrimination was a complete defense to a prosecution under N.J.S.A. 2C:35-10c. Id. at 422-23, 607 A.2d 191.
We agree that the statute conflicts with defendant's privilege against self-incrimination. Nevertheless, we construe N.J.S.A. 2C:35-10c to confer use and derivative-use immunity on any person who complies with that subsection. That construction
preserves the validity of the statute by removing the threat of prosecution that might otherwise result from compliance with its provisions.
Defendant was arrested by inspectors of the Alcoholic Beverage Control Enforcement Bureau during a raid on a bar. Inspector Siri saw defendant remove something from his pants pocket and drop it to the floor. Inspector Siri retrieved a folded five-dollar bill containing .86 grams of cocaine. He then arrested defendant.
Defendant was indicted for third-degree possession of cocaine in violation of N.J.S.A. 2C:35-10a(1). Before trial, the State amended the charge to the disorderly-persons offense defined in N.J.S.A. 2C:35-10c. Defendant was tried by a Law Division Judge sitting as a Municipal Court Judge. See N.J.S.A. 2A:8-11, repealed by L. 1991, c. 91 (current version at N.J.S.A. 2B:2-2). Defendant was convicted of failing to deliver a controlled dangerous substance to a law-enforcement officer in violation of N.J.S.A. 2C:35-10c. The court sentenced defendant to a one-year suspended term. N.J.S.A. 2C:43-2b. The court also imposed a $500 Drug Enforcement and Demand Reduction penalty, a $50 forensic laboratory fee, a $30 Violent Crimes Compensation Board penalty, and a six-month revocation of defendant's driver's license.
The trial court thereafter granted defendant's motion in arrest of judgment, R. 3:21-9, finding that N.J.S.A. 2C:35-10c impermissibly compromised defendant's privilege against self-incrimination. The State appealed from that judgment. Construing the statute to confer use and derivative-use immunity on a person who complied with it, the Law Division reinstated defendant's conviction. On appeal from that determination, the Appellate Division held that to confer immunity would be improper. 256 N.J. Super. at 422, 607 A.2d 191. The court could not "confidently conclude that the Legislature would have wanted to provide this disorderly person 'downgrade option' if it had the potential of forestalling or impairing prosecutions for more serious offenses." Id. at 421, 607 A.2d 191. According to the Appellate Division, without that immunity, an assertion of the privilege against self-incrimination is
a full defense to the prosecution. Id. at 422, 607 A.2d 191. The Appellate Division held that defendant properly had asserted his privilege and it reinstated the judgment of acquittal. Id. at 423, 607 A.2d 191. We granted the State's petition for certification, 130 N.J. 395, 614 A.2d 617 (1992).
Defendant contends before us that his assertion of his privilege against self-incrimination bars his conviction under N.J.S.A. 2C:35-10c. According to defendant, that statute compels disclosure of evidence to the State that inevitably would lead to prosecution for other and substantially more serious offenses, and the statute therefore is unconstitutional. Defendant argues that the Legislature did not contemplate use and derivative-use immunity. Thus, according to defendant, invalidating the statute would be more consistent with the legislative intent than construing the statute to include that immunity.
The State argues that the statute does not violate defendant's right against self-incrimination. However, as a secondary argument, it urges us to read N.J.S.A. 2C:35-10c to provide use and derivative-use immunity to any person who complies with it by providing to the police evidence that may be incriminating. According to the State, that reading preserves defendant's privilege against self-incrimination and saves the statute from constitutional infirmity.
To put the issue in perspective, we first must consider the context in which N.J.S.A. 2C:35-10 was amended to include subsection c. In 1987, the Legislature enacted the Comprehensive Drug Reform Act of 1986, N.J.S.A. 2C:35-1 to -23 ("CDRA"). CDRA imposes severe mandatory sanctions on all drug offenders. "It reflects the Legislature's 'zero tolerance' for drug use and distribution and the State's commitment to use the coercive power of the criminal law to enforce this policy." Final Report, Task Force on Drugs and the Courts 5 (Apr. 1991). The enactment of CDRA caused a dramatic increase in the number of drug arrests. Report of the Special Committee to Assess Criminal Division Needs, 4 (Jan. 31, 1990). That increase exacerbated the pressure
on the criminal courts. As noted by the Supreme Court Task Force on Speedy Trial,
[e]xpansion of backlog translates into increased delay in resolving criminal cases. Since it is widely believed that the criminal Justice system can be most effective in deterring crime by providing swift and certain punishment, delay in the criminal courts can be seen not only as undesirable in itself but a significant factor in increasing the risk of injury to citizens by criminal activity.
[The New Jersey Supreme Court 1986 Judicial Conference on Speedy Trial, Report of the Committee on Delay Points and Problems Affecting Speedy Trial 50 (May 1986) (Speedy Trial Report).]
In its 1986 report, issued prior to the enactment of CDRA, the Supreme Court Task Force on Speedy Trial acknowledged that the caseload of the criminal-Justice system could be reduced significantly by prosecutors exercising their discretion to refer matters to municipal court for prosecution as disorderly-persons offenses. Ibid. It emphasized the importance of prosecutorial "screening" and noted that "the prosecutor should attempt to proportion the number of defendants being indicted to the capacity of the criminal courts to process the defendants." Ibid. To encourage that practice, the Task Force recommended that the Legislature "consider the enactment of statutes creating appropriate disorderly persons offenses for possession of small quantities of certain drugs * * * to permit the use of prosecutorial discretion in the charging and screening process." Id. at 53.
In 1988, the Legislature amended N.J.S.A. 2C:35-10 by adding subsection c. L. 1988, c. 44. Since its enactment, N.J.S.A. 2C:35-10c has been used only as a mechanism to downgrade simple possession, an indictable offense, to a disorderly-persons offense. At oral argument, the Deputy Attorney General informed us that no defendants have been charged with a violation of that subsection except for those defendants whose charges had been downgraded from an original charge of simple possession. Between January 1, 1990, and November 5, 1992, indictable controlled dangerous-substance ...