State v. Bulu

• Decision Date: 11 July 1989
• Citation: 560 A.2d 1250,234 N.J.Super. 331
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Paul Dominic BULU, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 331

234 N.J.Super. 331

560 A.2d 1250

STATE of New Jersey, Plaintiff-Respondent, v. Paul Dominic BULU, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued May 9, 1989.

Decided July 11, 1989.

Marsha Wenk, Asst. Deputy Public Defender, for defendant-appellant (Alfred A. Slocum, Public Defender, attorney; Sheri Woliver, Deputy Public Defender, of counsel; Marsha Wenk, on the brief).

Frank J. Bucsi, Sr. Asst. Prosecutor, for plaintiff-respondent (Richard C. Hare, Warren County Prosecutor, attorney; Frank J. Bucsi, of counsel and on the letter brief).

Lisa Sarnoff Gochman, Deputy Atty. Gen., for amicus curiae Peter N. Perretti, Jr., Atty Gen. (Peter N. Perretti, Jr., attorney; Lisa Sarnoff Gochman, of counsel and on the brief).

Before Judges MICHELS, LONG and MUIR, Jr.

The opinion of the court was delivered by

MICHELS, P.J.A.D.

The significant issue posed by this appeal is whether a mandatory Drug Enforcement and Demand Reduction (DEDR) penalty may be assessed, pursuant to N.J.S.A. 2C:35-15a, against a defendant who has been charged with drug offenses and subsequently is admitted into a Pretrial Intervention (PTI) program.

The record shows that on August 11, 1988, New Jersey State Troopers Salamone and Moyna were on a routine check of the westbound rest area of Interstate Route 80 in Allamuchy Township. While driving past defendant Paul Dominic Bulu's parked automobile, the troopers noticed defendant look at them, bow his head and then duck down in the passenger seat leaving only the top of his head visible. When the troopers approached defendant's car to question him about his actions, they noticed that his voice was muffled and that he had a bulge in his cheek. The troopers also observed a package of "rolling papers" between the seat belt coil and the headliner of the car.

Defendant was ordered out of his car and told to open his mouth. Inside defendant's mouth, the troopers observed a clear plastic bag containing what was later determined to be 0.46 grams of marijuana. Defendant spit the bag into his hands and then tore it open, scattering most of its contents. Defendant was placed under arrest and the passenger compartment of the vehicle was searched. Inside the center console the troopers found a marijuana pipe and a film canister holding a clear plastic bag containing what was later determined to be 0.33 grams of cocaine. A buck knife was found between the driver's seat and the door and a butterfly knife was found in the glove compartment. Defendant consented to a search of the remainder of the vehicle and no additional contraband was recovered.

Three separate complaints were issued against defendant. The first complaint charged defendant with (1) possession of a controlled dangerous substance, to wit, cocaine, in violation of N.J.S.A. 2C:35-10a(1) (First Count); (2) possession of a buck knife without any explainable lawful purpose, in violation of N.J.S.A. 2C:39-3e (Second Count), and (3) possession of a butterfly knife without any explainable lawful purpose, in violation of N.J.S.A. 2C:39-3e (Third Count). The second complaint charged defendant with suppression, by way of concealment or destruction, of evidence of a crime which might aid in the discovery or apprehension of such person or in the lodging of a charge against him, in violation of N.J.S.A. 2C:29-3a(3). The third complaint charged defendant with (1) possession of a controlled dangerous substance, to wit, less than 50 grams of marijuana, in violation of N.J.S.A. 2C:35-10a(4) (First Count), and (2) possession of narcotics paraphernalia, in violation of N.J.S.A. 2C:36-2 (Second Count).

Defendant was accepted into the Warren County PTI Program and further criminal proceedings were postponed for one year. Shortly thereafter, defendant was advised that two conditions to his admission into PTI inadvertently had been omitted from the Order of Postponement. Specifically, defendant was informed that the Order of Postponement failed to indicate that he was required to pay a mandatory $1,000 DEDR penalty pursuant to N.J.S.A. 2C:35-15a(3) and two $50 forensic laboratory analysis fees pursuant to N.J.S.A. 2C:35-20a. After a hearing, the trial court denied defendant's request for relief and ruled that payment of DEDR penalty and laboratory fees were a condition of defendant's admission into PTI. We granted defendant leave to appeal and stayed payment of the DEDR penalty and fees pending disposition of the appeal. ¹

Defendant seeks a judicial declaration that the portion of N.J.S.A. 2C:35-15 that mandates the imposition of a DEDR penalty upon individuals placed into supervisory treatment pursuant to N.J.S.A. 2C:43-12 is unconstitutional, and an order relieving him of the obligation to pay such penalty. Defendant first contends that the imposition or assessment of a DEDR penalty against him violates procedural and substantive due process of law. Specifically, he claims that DEDR penalties are punitive in nature and, therefore, may not be imposed absent a finding of guilt beyond a reasonable doubt. We disagree.

N.J.S.A. 2C:35-15 of the Comprehensive Drug Reform Act of 1986, N.J.S.A. 2C:35-1 et seq., provides:

a. In addition to any disposition authorized by this title, the provisions of section 24 of P.L.1982, c. 77 (C. 2A:4A-43), or any other statute indicating the dispositions that can be ordered for an adjudication of delinquency, every person convicted of or adjudicated delinquent for a violation of any offense defined in this chapter or chapter 36 of this title shall be assessed for each such offense a penalty fixed at:

(1) $3,000.00 in the case of a crime of the first degree;

(2) $2,000.00 in the case of a crime of the second degree;

(3) $1,000.00 in the case of a crime of the third degree;

(4) $750.00 in the case of a crime of the fourth degree; (5) $500.00 in the case of a disorderly persons or petty disorderly persons offense.

Every person placed in supervisory treatment pursuant to the provisions of N.J.S. 2C:36A-1 or N.J.S. 2C:43-12 for a violation of any offense defined in this chapter or chapter 36 of this title shall be assessed the penalty prescribed herein and applicable to the degree of the offense charged, except that the court shall not impose more than one such penalty regardless of the number of offenses charged. If the person is charged with more than one offense, the court shall impose as a condition of supervisory treatment the penalty applicable to the highest degree offense for which the person is charged.

All penalties provided for in this section shall be in addition to and not in lieu of any fine authorized by law or required to be imposed pursuant to the provisions of N.J.S. 2C:35-12.

b. All penalties provided for in this section shall be collected as provided for collection of fines and restitutions in section 3 of P.L.1979, c. 396 (C. 2C:46-4), and shall be forwarded to the Department of Law and Public Safety as provided in subsection c. of this section.

c. All moneys collected pursuant to this section shall be forwarded to the Department of Law and Public Safety to be deposited in a nonlapsing revolving fund to be known as the "Drug Enforcement and Demand Reduction Fund."

d. All moneys, including fines and restitution, collected from a person convicted of or adjudicated delinquent for an offense or placed in supervisory treatment pursuant to N.J.S. 2C:43-12 shall be applied first to any Violent Crimes Compensation Board penalty imposed pursuant to section 2 of P.L.1979, c. 396 (C.2C:43-3.1), and shall next be applied to any forensic laboratory fee assessed pursuant to N.J.S. 2C:35-20, and shall next be applied to any penalty imposed pursuant to this section.

e. The court may suspend the collection of a penalty imposed pursuant to this section; provided the defendant agrees to enter a residential drug rehabilitation program approved by the court; and further provided that the defendant agrees to pay for all or some portion of the costs associated with the rehabilitation program. In this case, the collection of a penalty imposed pursuant to this section shall be suspended during the defendant's participation in the approved rehabilitation program. Upon successful completion of the program, the defendant may apply to the court to reduce the penalty imposed pursuant to this section by any amount actually paid by the defendant for his participation in the program. The court shall not reduce the penalty pursuant to this subsection unless the defendant establishes to the satisfaction of the court that he has successfully completed the rehabilitation program. If the defendant's participation is for any reason terminated before his successful completion of the rehabilitation program, collection of the entire penalty imposed pursuant to this section shall be enforced. Nothing in this section shall be deemed to affect or suspend any other criminal sanctions imposed pursuant to this chapter or chapter 36 of this title. [Emphasis added].

Thus, N.J.S.A. 2C:35-15a requires the imposition of a DEDR penalty upon (1) every person convicted of an offense defined in Chapters 35 or 36 of Title 2C; (2) every person adjudicated delinquent for a violation of an offense defined in Chapter 35 or 36 of Title 2C, and (3) every person charged with an offense defined in Chapters 35 or 36 of Title 2C who subsequently, as a result, is placed in supervisory treatment pursuant to N.J.S.A. 2C:36A-1 or N.J.S.A. 2C:43-12 (PTI).

N.J.S.A. 2C:35-15d and N.J.S.A. 2C:35-15e provide for situations where a person who has been assessed a DEDR penalty is unable to pay the entire penalty. N.J.S.A. 2C:35-15d indicates that all moneys collected from a person should be applied first toward the payment of any Violent Crimes Compensation Board (VCCB) penalty imposed pursuant to N.J.S.A. 2C:43-3.1, then toward the payment of any forensic laboratory analysis fee assessed pursuant to N.J.S.A. 2C:35-20 and, finally,...