State v. Bond

• Decision Date: 17 December 2003
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Charles BOND, Defendant-Appellant.
• Court: New Jersey Superior Court

839 A.2d 888

365 N.J. Super. 430

STATE of New Jersey, Plaintiff-Respondent, v. Charles BOND, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Argued November 18, 2003.

Decided December 17, 2003.

Cecelia Urban, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Ms. Urban, of counsel and on the brief).

Carol M. Henderson, Assistant Attorney General, argued the cause for respondent (Peter C. Harvey, Attorney General, attorney; Ms. Henderson, of counsel and on the brief).

Before Judges PRESSLER, ALLEY and PARKER. The opinion of the court was delivered by ALLEY, J.A.D

Defendant Charles Bond was charged with second-degree sexual assault, N.J.S.A. 2C:14-2b, and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a, on August 29, 1997. He pled guilty on June 15, 1998, to sexually assaulting a nine-year-old girl and was sentenced the following day to the Adult Diagnostic and Treatment Center ("ADTC") for a term of five years. In addition to the custodial term, defendant was subject to the requirements of Megan's Law, N.J.S.A. 2C:7-1 to -11, and he was accordingly sentenced to community supervision for life ("CSL"). We affirmed defendant's conviction and sentence for second-degree sexual assault. State v. Bond, A-6965-98T4 (March 6, 2001).

In conjunction with his impending parole from imprisonment on that sentence, defendant signed a document on May 1, 2000, setting forth the conditions for CSL, as was required for his release on parole. The document stated:

I understand that pursuant to N.J.S.A. 2C:43-6.4 my sentence includes a special sentence of community supervision for life. I understand that during the service of the special sentence of community supervision for life I shall be under the supervision of the Bureau of Parole of the Department of Corrections and shall be subject to the following general conditions as established by the State Parole Board.

Among these conditions, he was required "to obey all laws" and to "refrain from the purchase, use, possession, distribution or administration of any narcotic or controlled dangerous substance ... or any paraphernalia related to such substances except as prescribed by a physician" and "submit to drug or alcohol testing at any time as directed by the assigned parole officer." The form further stated, "I understand that I will be under the supervision of the Bureau of Parole of the Department of Corrections until I am released from community supervision by the Superior Court." By his signature, defendant acknowledged "that a violation of a condition specified above without good cause constitutes a crime of the fourth degree."

Six and one-half months after being paroled on May 1, 2000, defendant was indicted on November 16, 2000, on charges of committing the fourth-degree offenses of failure to register as a convicted sex offender, N.J.S.A. 2C:7-2a, and violating the conditions of CSL, N.J.S.A. 2C:43-6.4, under indictment No. 00-11-1941. Defendant pled guilty to the charge of violating the conditions of CSL on December 14, 2000, and on January 26, 2001, defendant was sentenced to a three-year term of probation which included the following conditions: (1) 193 days in county jail (time served), (2) compliance with the conditions of Megan's Law, including CSL, and (3) maintenance of full-time employment.

Defendant tested positive for the use of cocaine on March 7, 2001, and on May 25 he was charged with fourth-degree violation of CSL for such use, N.J.S.A. 2C:43-6.4, under indictment No. 01-05-0954. Defendant moved to dismiss that indictment, asserting that N.J.S.A. 2C:43-6.4 was unconstitutionally vague and overbroad and was a violation of the separation of powers doctrine. After arguments on the motion to dismiss, defendant pled guilty on November 9, 2001, for violating the terms of the three-year probation imposed for the charges contained in indictment No. 00-11-1941.

These violations were charged based on his having failed to report to his parole officer and tested positive for cocaine use. That same day, Judge Michael D. Farren sentenced defendant to a custodial term of eighteen months.

On April 3, 2002, Judge Farren issued a letter opinion denying defendant's motion to dismiss indictment No. 01-05-0954, finding that defendant was on notice that illegal drug use was prohibited under the conditions of CSL.

On April 8, 2002, defendant pled guilty to the fourth-degree offense of violating the conditions of CSL, as charged in indictment No. 01-05-0954. On April 11, 2002, Judge Farren sentenced defendant to a custodial term of thirteen months, concurrent to the term he was currently serving.

On April 24, 2002, defendant was released from custody on parole.

Defendant's brief contends as follows:

POINT I: THE TRIAL JUDGE SHOULD HAVE GRANTED MR. BOND'S MOTION TO DISMISS THE INDICTMENT BECAUSE N.J.S.A. 2C:43-6.4d IS UNCONSTITUTIONALLY VAGUE. (U.S. CONST., AMENDS. IV AND V; N.J. CONST. (1947) ART. I, PAR. 1).

POINT II: IN FAILING TO (1) DEFINE THE "SPECIAL SENTENCE" OF COMMUNITY SUPERVISION FOR LIFE, (2) DEFINE THE CRIME OF BREACHING ANY CONDITION OF THAT SPECIAL SENTENCE, AND (3) IDENTIFY WHICH AGENCY SHALL ADMINISTER IT, THE LEGISLATURE UNCONSTITUTIONALLY EITHER ABDICATED ITS POWER TO DEFINE CRIMES AND PUNISHMENTS, OR DELEGATED IT TO THE EXECUTIVE BRANCH WITHOUT IMPOSING NECESSARY CONSTRAINTS ON THE LATTER'S DISCRETION. (N.J. Const. (1947), Art. III, par. 1).

N.J.S.A. 2C:43-6.4 states, in relevant part:

b. The special sentence of community supervision required by this section shall commence upon completion of the sentence imposed pursuant to other applicable provisions of the Code of Criminal Justice. Persons serving a special sentence of community supervision shall be supervised as if on parole and subject to conditions appropriate to protect the public and foster rehabilitation.

....

d. A person who violates a condition of a special sentence of community supervision without good cause is guilty of a crime of the fourth degree.

[(emphasis added)].

We address first the argument that N.J.S.A. 2C:43-6.4 is unconstitutionally vague because it fails to (1) adequately describe what conduct it proscribes and (2) define what comprises "good cause." Defendant also asserts that "N.J.S.A. 2C:43-6.4 is facially vague because it prohibits no specific conduct whatsoever."

In his letter opinion dated April 3, 2002, Judge Farren explained:

N.J.S.A. 2C:43-6.4 states "... Persons serving a special sentence for community supervision for life shall be supervised as if on parole." N.J.S. 30:4-127.59¹ provides inter alia that "the conditions of parole shall include ... a requirement that the parolee refrain from the use, possession or distribution of a controlled dangerous substance ... as defined in N.J.S. 2C:35-2 and N.J.S. 2C:35-11...." Therefore, the Legislature, not the Parole Board, has set the condition prohibiting the use of a controlled dangerous substance by a parolee or one under community supervision for life. The defendant received notice that he was not to use controlled dangerous substances while under community supervision for life. Based upon the foregoing, this Court finds no merit to the defendant's arguments.

Defendant argues that the court erred by relying upon N.J.S.A. 30:4-123.59 to show that CDS use was prohibited under N.J.S.A. 2C:43-6.4 because (1) "community supervisees" are not parolees, (2) N.J.S.A. 2C:43-6.4 does not state that "community supervisees" are subject to the "General Conditions of Parole" and that violations thereof constitute a fourth-degree offense, and (3) N.J.S.A. 2C:43-6.4 itself does not provide adequate notice. As we understand it, the principal thrust of defendant's contentions is a lack of notice, and therefore lack of due process, which he asserts results from a person on CSL not knowing what conduct would trigger a CSL violation.

We conclude, however, that N.J.S.A. 2C:43-6.4, when read in conjunction with the Parole Act, N.J.S.A. 30:4-123.59b, and the CSL regulations, N.J.A.C. 10A:71-6.11, provides adequate notice that use of a CDS by a person subject to CSL is prohibited. Moreover, defendant received full written notice of the conditions of CSL, one of which proscribed the use of a CDS. The three-page document that defendant signed on May 1, 2000, prior to his release on parole also indicated that he would be under "the supervision of the Bureau of Parole of the Department of Corrections...."

A statute is deemed constitutionally vague when its terms do not enable a person of common intelligence to understand whether the contemplated conduct is lawful. State v. Cameron, 100 N.J. 586, 591, 498 A.2d 1217 (1985). This determination must be made in light of the contextual background of the particular statute while being mindful of its objectives. Ibid. In order for a statute to be facially vague, it must be vague when applied under any circumstances. State v. Maldonado, 137 N.J. 536, 563, 645 A.2d 1165 (1994). The requirement that criminal statutes be clear and understandable serves two important goals: one is providing notice of illegality and the other is creating clear standards for enforcement. Id. at 562, 645 A.2d 1165. Criminal statutes are subjected to a greater degree of scrutiny for vagueness due to the potential severity of their ramifications. Ibid. While criminal statutes are more critically scrutinized for vagueness than are civil laws, "precise definition" is not required. State v. Lee, 96 N.J. 156, 166, 475 A.2d 31 (1984). In any event, A criminal statute must be sufficiently definite to give notice of the required conduct to one who would avoid its penalties, and to guide the judge in its application and the lawyer in defending one charged with its violation. But few words possess the precision of mathematical symbols, most statutes must deal with untold and unforeseen variations in factual situations,...