August 5, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KIM PETERS, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 13, 2009
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 BENEFIT FROM THE STATE?
Our review of the record in this matter satisfies us that defendant was properly denied a conditional discharge pursuant to N.J.S.A. 2C:36A-1a. Subsection a of that statute, entitled "Conditional Discharge for Certain First Offenses," specifically limits its applicability to "any person who has not previously been convicted of any offense under... [N.J.S.A.] 24:21-20, or a disorderly persons or petty disorderly persons offense defined in chapter 35 or 36 of this title." The record confirms that defendant was charged with and convicted of possession of marijuana pursuant to N.J.S.A. 24:21-20. For that reason, the judge was correct in denying defendant's application for diversion, and his determination in that regard is affirmed.
Our conclusion in this regard is strengthened by the Court's decision in Collins, which enforced the CDS Act's provision barring from diversion persons who had been previously convicted of a Title 24 drug offense, but suggested that such persons might nonetheless qualify for pre-trial intervention under the Criminal Code. 90 N.J. at 452. The language of N.J.S.A. 2C:36A-1 is virtually identical to that previously found in N.J.S.A. 24:21-27, the provision governing diversion under the CDS Act, and we assume the Code provision was derived from the earlier statutory scheme. We therefore find it reasonable to construe N.J.S.A. 2C:36A-1 as N.J.S.A. 24:21-27 was construed in Collins.
We decline to address defendant's arguments that relate to pretrial intervention pursuant to N.J.S.A. 2C:43-12. Because defendant has not applied for that program, any analysis by us as to eligibility would constitute a legally improper advisory opinion. G.H. v. Twp. of Galloway, 199 N.J. 135, 136 (2009). We do not preclude defendant from applying for pre-trial intervention, should he wish to do so, but express no opinion on his eligibility.
Although we have affirmed defendant's conviction, we note that defendant is employed as a glazier and is assigned to work at various locations throughout the state that would be difficult to access on a timely basis if defendant were required to rely solely on public transportation. We note as well defendant's claim that he would lose his job if he were unable to report, as required, to the locations to which he was assigned by his employer, and that a steady income is necessary as the result of defendant's obligation to pay child support. At oral argument, we requested the prosecutor to consider whether defendant's transportation difficulties constituted compelling circumstances sufficient to warrant a waiver of the license suspension pursuant to N.J.S.A. 2C:35-16a. The prosecutor did so, and declined to voluntarily waive the license suspension. Nonetheless, we note that, pursuant to statute, the determination as to waiver must be made by the court. Further, we are uncertain whether the record considered by the prosecutor in declining consent to waiver was accurate and complete. As a consequence, we remand the matter to the trial court for a hearing on the applicability of the waiver provision to this case.
The judgment of conviction is affirmed. The matter is remanded for consideration of the applicability of the waiver of license suspension provisions of N.J.S.A. 2C:35-16a. Jurisdiction is not retained.
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