State v. Reevey

• Citation: 516 A.2d 269,213 N.J.Super. 37
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Charles REEVEY, Defendant-Appellant.
• Decision Date: 07 October 1986
• Court: New Jersey Superior Court – Appellate Division

Page 37

213 N.J.Super. 37

516 A.2d 269

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

Superior Court of New Jersey Appellate Division.

Submitted Sept. 9, 1986.

Decided Oct. 7, 1986.

Alfred A. Slocum, Public Defender, for defendant-appellant (Richard F. Healey, Designated Counsel, Newark, of counsel, and on the letter brief).

W. Cary Edwards, Atty. Gen., for plaintiff-respondent (Helena Gorochow, Deputy Atty. Gen., of counsel and, on the letter brief).

Before Judges MICHELS and LANDAU.

The opinion of the court was delivered by

MICHELS, P.J.A.D.

Following plea negotiations, defendant Charles Reevey pleaded guilty to (1) two counts charging him with distribution of heroin and cocaine in violation of N.J.S.A. 24:21-19a(1) (Count Three and Count Twelve of Indictment No. 684-4-84) and (2) two counts charging him with distribution of cocaine in violation of N.J.S.A. 24:21-19a(1) (Count Six of Indictment No. 684-4-84 and Count Three of Indictment No. 932-6-84). The State, for its part of the plea agreement, recommended that the aggregate custodial sentences to be imposed upon defendant not exceed a maximum of 15 years and that the remaining criminal charges in both indictments be dismissed.

In accordance with the plea agreement, defendant was committed to the custody of the Commissioner of the Department of Corrections for 12 years with a minimum parole ineligibility period of six years for distribution of cocaine under Count Three of Indictment No. 932-6-84. In addition, he was sentenced to concurrent 12 year terms, with minimum parole ineligibility periods of six years on Counts Three, Six and Twelve of Indictment No. 684-4-84. These latter terms were to run concurrently with the sentence imposed under Count Three of Indictment No. 932-6-84. Defendant's motion for reconsideration of his sentences on the ground that the imposition of parole ineligibility terms was illegal was denied and this appeal followed.

Defendant seeks a vacation of his sentences and a remand to the trial court for resentencing. He claims that the trial court erred in imposing the sentences and in denying his subsequent motion for reconsideration for the following reasons set forth in his brief:

POINT I BY REASON OF VAGUENESS AND UNCERTAINTY, THE RECENT AMENDMENT TO N.J.S.A. 2C:43-6b, AS IT APPLIES TO TITLE 24 OFFENSES AND THE PAROLE ACT OF 1979 IS REPUGNANT TO THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION.

POINT II THE TWELVE YEAR PRISON SENTENCE WITH SIX YEARS OF PAROLE INELIGIBILITY IMPOSED UPON DEFENDANT WAS UNREASONABLE, MANIFESTLY EXCESSIVE AND SHOCKING TO THE JUDICIAL CONSCIENCE.

We have carefully considered these contentions and all of the arguments advanced by defendant in support of them and find that they are clearly without merit. R. 2:11-3(e)(2). However, some further comment is necessary with respect to defendant's contention that his sentences are illegal due to the imposition of the six year parole ineligibility terms.

I.

Defendant claims that the imposition of the parole ineligibility terms was unwarranted and that the trial court erred in relying on N.J.S.A. 2C:43-6b by imposing these terms as part of his sentences for violating the "New Jersey Controlled Dangerous Substances Act," N.J.S.A. 24:21-1 et seq. (Title 24). However, defendant does not primarily attack the trial court's reliance on N.J.S.A. 2C:43-6b. Instead, he raises a constitutional challenge to this statute, asserting that it "is ambiguous in its meaning, vague and therefore offends fundamental principles of due process as set forth in the Fourteenth Amendment of the United States Constitution."

N.J.S.A. 2C:43-6b, upon which the trial court relied in imposing the parole ineligibility terms, provides:

As part of a sentence for any crime, where the court is clearly convinced that the aggravating factors substantially outweigh the mitigating factors, as set forth in subsections a. and b. of 2C:44-1, the court may fix a minimum term not to exceed one-half of the term set pursuant to subsection a., or one-half of the term set pursuant to a maximum period of incarceration for a crime set forth in any statute other than this code, during which the defendant shall not be eligible for parole; provided that no defendant shall be eligible for parole at a date earlier than otherwise provided by the law governing parole ... [Emphasis supplied].

Preliminarily, we point out that prior to the amendment of N.J.S.A. 2C:43-6b, effective February 12, 1981, by L.1981, c. 31, § 1, this statute provided:

As part of a sentence for a crime of the first or second degree and notwithstanding the provision of 2C:43-9, the court may fix a minimum term not to exceed one-half of the term set pursuant to subsection a. during which the defendant shall not be eligible for parole provided that no defendant shall be eligible for parole at a date earlier than otherwise provided by the law governing parole. [L.1979, c. 178, § 85, effective September 1, 1979 (Emphasis supplied) ].

In this form, N.J.S.A. 2C:43-6b permitted imposition of a period of parole ineligibility only with respect to sentences for first or second degree crimes under the Code. However, by the February 12, 1981 amendment, the Legislature substituted the words "any crime" for "a crime of the first or second degree" and added the phrase "or one-half of the term set pursuant to a maximum period of incarceration for a crime set forth in any statute other than this code," to the parole ineligibility provisions of N.J.S.A. 2C:43-6b. See L.1981, c. 31, § 1, effective February 12, 1981 (adopting these changes). This language currently appears in the statute and is directly applicable in this case. The application of the sentencing provisions of the Code dealing with parole eligibility to Title 24 offenses is no longer in question. In State v. Flippen, 208 N.J.Super. 573, 576, 506 A.2d 768 (App.Div.1986), we specifically held that N.J.S.A. 2C:43-6b applies to sentencing under Title 24 and that a parole ineligibility term for a Title 24 offense was legal. See also State v. Sobel, 183 N.J.Super. 473, 479 n. 1, 444 A.2d 598 (App.Div.1982); State v. Guzman, 199 N.J.Super. 346, 351 n. 3, 489 A.2d 724 (Law Div.1985). Thus, there was statutory authority to support the trial court's imposition of parole ineligibility terms for defendant's Title 24 convictions.

We turn therefore to defendant's constitutional challenge to the statute. Defendant essentially contends that N.J.S.A. 2C:43-6b is unconstitutionally vague because "there is no way of knowing whether the term 'any crime' [which appears within the statutory language] applies to convictions under Title 24, or only convictions under the Code." He claims that the statute "does not afford a defendant sufficient notice that it applies to convictions pursuant to Title 24," thereby raising "a procedural due process [issue] grounded in notions of fair play." State v. Lashinsky, 81 N.J. 1, 17, 404 A.2d 1121 (1979).

The principle which underlies a vagueness claim brought on due process grounds is "that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed." Colten v. Kentucky, 407 U.S. 104, 110, 92 S.Ct. 1953, 1957, 32 L.Ed.2d 584, 590 (1972). In the context of a criminal sentencing statute, the principle which is more directly applicable is that:

[the] statute is unconstitutional if it is couched in terms "so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." [State v. Lashinsky, supra, 81 N.J. at 17, 404 A.2d 1121 (quoting Coates v. Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 1688, 29 L.Ed. 214, 217 (1971) ].

In accordance with this principle, our Supreme Court has held that "[n]o one shall be punished for a crime unless both that crime and its punishment are clearly set forth in positive law." In re Suspension of DeMarco, 83 N.J. 25, 36, 414 A.2d 1339 (1980). See also Town Tobacconist v. Kimmelman, 94 N.J. 85, 125 n. 21, 462 A.2d 573 (1983) (vagueness test "demands that a law be sufficiently clear and precise so that people are given fair notice and adequate warning of the law's reach.").

Clearly, penal statutes are subject to sharper scrutiny, State v. Cameron, 100 N.J. 586, 592, 498 A.2d 1217 (1985), and a high standard of certainty applies to a vagueness challenge in a criminal case. State v. Lee, 96 N.J. 156, 167, 475 A.2d 31 (1984). This rule has, as its basis, the requirement of due process. See In re Suspension of DeMarco, supra, 83 N.J. at 36, 414 A.2d 1339. However, it does not invariably follow that simply because there is an argument raised "as to the meaning of a penal sanction, the statute is impermissibly vague...." Ibid. Thus, the fact that certain statutory phrases are not "impeccable specimens of draftsmanship" should not serve to impugn the legality of a statutory provisions as long as procedural and judicial safeguards are in existence. In re Hotel and Restaurant Employees and Bartenders International Union Local 54, 203 N.J.Super. 297, 328, 496 A.2d 297 (App.Div.1985).

The fact that a statutory provision may need some judicial interpretation does not render it unconstitutional. Troy Hills Village v. Fischler, 122 N.J.Super. 572, 582, 301 A.2d 177 (Law Div.1971), aff'd o.b., 122 N.J.Super. 525, 301 A.2d 153 (App.Div.1973). Rather,

[t]he question is ultimately one of fairness, given the statute and its provisions, and given the situation of the defendant. Should he have understood that his conduct was proscribed, should he have understood that the penalty about to be imposed was the sanction intended by the Legislature? The test is whether the statute gives a person of ordinary intelligence fair notice that his conduct is forbidden and punishable by certain penalties. That test, however, does not consist of a linguistic analysis conducted in a vacuum. It...