On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. MA-001-00-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Newman.
On August 31, 2007, defendant, Kim Peters, was stopped by the police after he repeatedly changed lanes without signaling. While defendant was standing on the sidewalk, the police noticed a bulge in his pocket, which defendant admitted was caused by a crack pipe. He also directed the police to the map pocket of his car, where he had placed a cigarette pack containing twenty-two packets of crack cocaine. A twenty-third packet was found on defendant's person. Defendant was arrested and charged with third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1), third-degree possession of cocaine with the intent to distribute it, N.J.S.A. 2C:35:5b(1), and the disorderly persons offense of possession with the intent to use drug paraphernalia, N.J.S.A. 2C:36-2. Additionally defendant was charged with two violations of Title 39: making an unsafe lane change, N.J.S.A. 39:4-88b, and possession of a controlled dangerous substance in a motor vehicle, N.J.S.A. 39:4-49.1.
On October 15, 2007, the criminal charge of drug possession was downgraded to the disorderly persons offense of failure to make lawful disposition of a controlled dangerous substance, N.J.S.A. 2C:35-10c, the charge of possession with intent to distribute was administratively dismissed, and the matter was remanded to municipal court. Upon appearance in municipal court, the judge initially admitted defendant into the conditional discharge program provided by N.J.S.A. 2C:36A-1 (Conditional Discharge for Certain First Offenders) and imposed concurrent probationary terms of six months on the charges of failure to make lawful disposition and possession of drug paraphernalia. Appropriate fees and penalties were also imposed. The judge held the motor vehicle complaints in abeyance pending completion of the conditional discharge program.
However, on December 12, 2007, defendant was rejected from participation in the conditional discharge program as the result of a prior conviction for possession of marijuana in 1976 pursuant to former statute N.J.S.A. 24:21-20b. Following the rejection, defendant applied to the municipal court judge for admission to the diversionary program over the objection of the Probation Department. After argument, the municipal court judge denied defendant's application. Defendant thereupon entered a conditional plea of guilty to the disorderly persons charges, as the result of which he was fined, fees and penalties were imposed, and his driver's license was suspended for a period of six months. The license suspension was stayed pending appeal.
On appeal, defendant claims entitlement to diversion, relying in this regard upon State v. Collins, 90 N.J. 449 (1982), a case construing the availability of pre-trial intervention under the Criminal Code to a person barred from the diversionary program provided by Title 24 as the result of a prior drug-related conviction governed by the CDS Act. After distinguishing Collins and finding it "informative" but not binding, the judge ruled that defendant was barred from obtaining a conditional discharge pursuant to N.J.S.A. 2C:36A-1 as the result of his prior conviction. The judge then imposed the same fines and penalties upon defendant that had been imposed by the municipal court judge, together with a six-month license suspension.
Defendant moved for reconsideration, arguing that he had cooperated with the police and offering in support of that argument his certification that, when he was arrested, he "was asked by the arresting officer if [he] could answer a few questions" and that he had done so. Reconsideration was denied. However, defendant's license suspension was again stayed pending further appeal to us.
On appeal, defendant raises the following issues:
WHERE THE DEFENDANT IS INELIGIBLE FOR SECTION 36 CONDITIONAL DISCHARGE, EVEN THOUGH HE SHOULD BE, CAN HE MAKE APPLICATION FOR PTI?
WHERE THE DEFENDANT COOPERATED, SHOULD HE NOT RECEIVE SOME ...