On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 01-10-0679.
Before Judges Cuff, Winkelstein and Lario.
The opinion of the court was delivered by: Cuff, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued Telephonically: May 18, 2004
The issue we must resolve in this appeal is whether defendant's employer, Middle Township Board of Education (Board), is barred from seeking forfeiture of defendant's employment following his conviction of wandering or loitering for the purposes of obtaining a controlled dangerous substance contrary to N.J.S.A. 2C:33-2.1. The trial judge ruled that the employer was barred; we disagree and reverse.
Resolution of the issue requires a review of the procedural history of this case. On October 9, 2001, a Cape May County Grand Jury charged defendant, William S. Och, Jr., and twelve co-defendants in an eleven count indictment. Specifically, the indictment charged defendant with one count of conspiracy to commit the crime of possession with the intent to distribute a controlled dangerous substance (CDS) (marijuana), a second-degree crime, contrary to N.J.S.A. 2C:5-2; N.J.S.A. 2C:35-5a(1); and N.J.S.A. 2C:35-5b(3). On February 21, 2002, defendant pleaded guilty to the lesser charge of wandering or loitering for the purposes of obtaining a controlled dangerous substance, a disorderly persons offense, contrary to N.J.S.A. 2C:33-2.1.
Prior to sentencing, the following colloquy occurred between the judge and counsel:
THE COURT: Is there anything you would like to say before you're sentenced?
[THE DEFENDANT]: No, Your Honor.
[DEFENSE COUNSEL]: Just briefly, Judge. He's 42-years old, married with a family, has a responsible job with the Middle Township Board of Education, hopes to return to that job following this proceeding. Judge, I would ask you to sentence in accordance with the plea agreement.
[ASSISTANT PROSECUTOR]: Judge, he has no prior criminal history --
THE COURT: Does he have to forfeit his employment?
[ASSISTANT PROSECUTOR]: No, Judge, ultimately -- I mean, I don't know what Middle Township plans to do with him, but not part of this agreement. It's a disorderly person's offense, which does not make forfeiture of the job mandatory.
[ASSISTANT PROSECUTOR]: So, the state is only asking that you sentence him to a term of probation. I think in light of his lack of a criminal history, [he's] not extremely advanced [in] age, but certainly for in this court, we don't see people his age ...