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State v. Stewart

Decided: June 8, 1994.


On certification to the Superior Court, Appellate Division.

Garibaldi, Wilentz, Clifford, Handler, Pollock, O'Hern, Stein


The opinion of the Court was delivered by


The State charged defendant, Keith Stewart, with three counts of narcotics violations and a disorderly persons offense of resisting arrest. Pursuant to a plea agreement under N.J.S.A. 2C:35-12 (section 12), defendant pled guilty to possession of a controlled dangerous substance with intent to distribute within 1,000 feet of school property, in violation of N.J.S.A. 2C:35-7 (section 7). As part of that agreement, the State dropped the other charges, and the court sentenced defendant on January 21, 1993, to two years probation conditioned on serving 364 days in the county jail.

Shortly thereafter defendant applied to the Essex County Local Intensive Probation Supervision Effort (ECLIPSE), an early-release program. On March 25, 1993, over the State's vigorous objection, the court granted defendant's application, and he was immediately released from the county jail. The sentencing Judge, then acting in his capacity as the Judge in charge of that early-release program, granted defendant's application to enter ECLIPSE.

The Appellate Division summarily vacated the court's order granting defendant admission into ECLIPSE, citing State v. Bridges, 131 N.J. 402, 621 A.2d 1 (1993). We granted defendant's petition for certification, 134 N.J. 479 (1993), to determine whether a court may divert to ECLIPSE a defendant who, pursuant to a section 12 plea agreement, pled guilty to a section 7 violation but who has not yet completed the county-jail sentence.


Section 7 is part of the Comprehensive Drug Reform Act of 1986, N.J.S.A. 2C-35-1 to -23 (Drug Reform Act). The Legislature, in enacting the Drug Reform Act, declared that the public policy of the State provides for "the strict punishment, deterrence and incapacitation of the most culpable and dangerous drug offenders." N.J.S.A. 2C:35-1.1c.

Specifically, defendant pled guilty to violating that portion of section 7 providing that

any person [found guilty of] * * * possessing with intent to distribute a controlled dangerous substance * * * while on any school property * * * or within 1,000 feet of such school property * * * 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. * * * [In cases involving at least one ounce of marijuana], the term of imprisonment shall include the imposition of a minimum term which shall be fixed at * * * [at least] three years, * * * during which the defendant shall be ineligible for parole.

A mandatory sentence may be reduced under a negotiated plea agreement entered pursuant to the terms of section 12. That section in pertinent part provides that a court

shall impose the mandatory sentence unless the defendant has pleaded guilty pursuant to a negotiated agreement * * * which provides for a lesser sentence or period of parole ineligibility. The negotiated plea * * * 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 * * * agreement. (Emphasis added.)

The Assembly Judiciary Committee recognized that section 12 permitted waiver of the mandatory terms imposed under the Drug Reform Act:

The [Drug Reform Act] bill requires the imposition of mandatory terms of imprisonment and mandatory terms of parole ineligibility for the most prolific or repeat offenders. These mandatory prison terms can only be waived by a negotiated plea or post-conviction agreement, and where that agreement expressly so provides, the defendant cannot receive a lesser term of imprisonment or fine than that expressly agreed to. This provision will ensure that the State, as well as the defendant, receives the full benefit of a negotiated agreement.

[Judiciary Committee Statement, Assembly Bill No. 3270 at 3 (Dec. 18, 1986) (emphasis added) ("Committee Statement").]

By authorizing negotiated plea agreements that waive the mandatory terms of the Drug Reform Act, the Legislature hoped to "'encourage offenders to cooperate with law enforcement efforts to detect, apprehend and successfully prosecute otherwise well-insulated drug traffickers.'" State v. Vasquez, 129 N.J. 189, 204, 609 A.2d 29 (1992) (quoting Cannel, New Jersey Criminal Code Annotated, comment 1 on N.J.S.A. 2C:35-1 (1992)). The Committee emphasized, however, that if the prosecutor waived the Drug Reform Act's mandatory terms in the ...

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