On appeal from the Superior Court of New Jersey, Law Division, Mercer County.
Approved for Publication June 14, 1995.
Before Judges Petrella and Brochin. The opinion of the court was delivered by Brochin, J.A.D.
The opinion of the court was delivered by: Brochin
Defendant Darren Johnson was charged with second degree aggravated assault, N.J.S.A. 2C:12-1.b. *fn1 He thereupon sought to apply to the Mercer County Prosecutor's Office for admission to the Pretrial Intervention Program. See N.J.S.A. 2C:43-12 et seq.; R. 3:28 and the guidelines thereunder. The prosecutor replied:
As you state, and as our records indicate, [defendant] received a conditional discharge for a marijuana offense in 1993. Pursuant to R. 3:28, guideline 3(g), a defendant who has previously received diversionary treatment is ineligible for PTI. Mr. Johnson's conditional discharge would therefore bar his application to the program.
The parties have not identified Mr. Johnson's prior offense except to say that it was a disorderly persons offense for violation of the marijuana laws. We assume that the offense was a violation of N.J.S.A. 2C:35-10a(4). Defendant received a conditional discharge for that offense pursuant to N.J.S.A. 2C:36A-1.
In the present case, the trial court ruled that the prosecutor was required to permit defendant to file his application for admission to the Pretrial Intervention Program and to consider the application on its merits. The court rejected the prosecutor's argument that any consideration of the application was precluded by N.J.S.A. 2C:43-12(g), which states:
Supervisory treatment may occur only once with respect to any defendant and any person who has previously received supervisory treatment under Section 27 of P.L. 1970, c. 226, (C. 24:21-27), shall not be eligible for supervisory treatment under this Section.
See also R. 3:28, Guideline 3(g) to the same effect. The rationale for the court's decision was that N.J.S.A. 2C:43-12(g) and R. 3:28, Guideline 3(g), were no bar because the defendant had been conditionally discharged pursuant to N.J.S.A. 2C:36A-1, which is not expressly referred to in N.J.S.A. 2C:43-12(g), rather than pursuant to P.L. 1970, c. 226, § 27 (N.J.S.A. 24:21-27, repealed), which is expressly referred to.
We granted the prosecutor's application for leave to appeal and we now reverse the order appealed from.
N.J.S.A. 24:21-27, the statutory section expressly referenced in N.J.S.A. 2C:43-12(g) and in R. 3:28, Guideline 3(g), was repealed by L. 1987, c. 106, § 25, effective July 9, 1987. See note to N.J.S.A. 24:21-27. The Disposition table preceding N.J.S.A. 2A:21-19 notes that the subject matter of former N.J.S.A. 24:21-7 is now covered in N.J.S.A. 2C:36A-1. The 1987 legislative commentary appended to N.J.S.A. 2C:36A-1 states in part:
This chapter governs the conditional discharge for certain first offenders, and is taken virtually verbatim from existing law found at N.J.S.A. 24:21-27. *fn2
We construe the language of N.J.S.A. 2C:43-12(g) as having been intended to prohibit consideration of defendant Darren Johnson for pretrial intervention because he previously received ...