involving N.J.S.A. 2C:36-6 must come from the
Legislature.
F. Double Jeopardy
In State v. Capak, 271 N.J. Super. 397 (App. Div.),
certif. denied, 137 N.J. 164 (1994), defendant’s
conviction for attempt to acquire a controlled dangerous
substance by fraud, contrary to N.J.S.A. 2C:5-1 and
2C:35-13, was not barred on double jeopardy grounds
by virtue of her prior guilty plea in municipal court to the
offense of theft of a prescription note sheet and using that
sheet in a fraudulent manner, contrary to N.J.S.A.
2C:20-3.
V. SENTENCING
A. In General
1. Sentencing Alternatives/Options............................................................................................
State v. Soricelli, 156 N.J. 525 (1999), held that
under N.J.S.A. 2C:35-14, residential drug treatment as
an alternative to incarceration is limited to “drug
dependent” defendants and is not available to those
defendants who have overcome their drug addiction as a
result of residential and out-patient treatment.
In State v. Diggs, 333 N.J. 7 (App. Div. 2000), the
court held that a defendant serving a sentence pursuant
to N.J.S.A. 2C:35-7 cannot be transferred to a drug
treatment program until the expiration of the minimum
term because the parole ineligibility period thereunder is
mandatory.
State v. Velez, 229 N.J. Super. 305 (App. Div. 1988),
held that a defendant may request to be sentenced under
the Comprehensive Drug Reform Act for an offense
committed prior to its effective date, but he is not
automatically entitled to have that request granted.
2. Pre-trial Intervention
State v. Baynes, 148 N.J. 434 (1997), held that
rejection of a pretrial intervention application based
merely on policy of denying enrollment for those charged
with a drug offense in a school zone constitutes a “patent
and gross abuse of discretion.” But see State v. Staruch, 326
N.J. Super. 245 (App. Div. 1999), where the court
declined to extend Baynes in the context of post-
conviction relief.
In State v. Caliguiri, 308 N.J. Super. 214 (App. Div.
1998), aff’d and mod., 158 N.J. 28 (1999), the Supreme
Court invalidated that section of the Attorney General’s
Supplemental Directive for Prosecuting Cases Under the
Comprehensive Drug Reform Act (January 6, 1997), which
required prosecutors to object to pretrial intervention
program (“PTI”) admission for persons charged under
N.J.S.A. 2C:35-7. The Court rejected the State’s
position that persons so charged are categorically
ineligible for PTI admission. The Court did hold,
however, “that prosecutors may treat N.J.S.A. 2C:35-7 as
equivalent to a second-degree offense and consider PTI
presumptively unavailable”, and that such defendant
must show “compelling reason” to rebut the
presumption.3. Suspension of Driving Privileges
In State in Interest of T.B., 134 N.J. 382 (1993), the
Supreme Court held that under N.J.S.A. 2C:35-16,
which mandates suspension of driving privileges on
conviction for drug offenses, the trial court must impose
concurrent, rather than consecutive, suspensions on an
offender being sentenced on the same date for multiple
drug offenses. Furthermore, where the person is less than
17 years old at the time of sentence, the period of the
suspension of driving privileges shall commence on the
day the sentence is imposed and shall run for a period of
not less than six months or more than two years after the
day the person reaches the age of 17 years. Finally, if the
person’s license is under revocation, suspension, or
postponement at the time of conviction or adjudication
of delinquency for a violation of any offense in Chapters
35 or 36, the revocation, suspension, or postponement
period imposed shall commence as of the date of
termination of the existing revocation, suspension or
postponement.4. Intensive Supervision Program
In State v. Stewart, 136 N.J. 174 (1994), the trial
court improperly admitted a defendant convicted of
possession of CDS within a school zone into the county
Intensive Probation Supervision Program because
N.J.S.A. 2C:35-12 expressly prohibits a court from
imposing a lesser term of imprisonment than that
provided by the plea agreement.5. Mandatory Minimum Term
In State v. Bridges, 131 N.J. 402 (1993), the
defendant entered into an agreement with the State
whereby in exchange for his guilty plea to third degree
possession of cocaine with intent to distribute in a school
zone, the State, under N.J.S.A. 2C:35-12, would waive