CASE STUDY # ONE (1)
N.J.S. 2C:35-10(a)(l) Possession of Oxycodone—no jail time
N.J.S. 2C:35-5(b) Possession with Intent To Distribute Oxycodone—no jail time
N.J.S. 2C:45-3 Violation of Probation—Complaint Withdrawn By Probation
In July 2010 I undertook representation of a 28 year old male who had been charged by Howell Township Police with possession of CDS (oxycodone) in violation of N.J.S. 2C:35-10(a)(l) and possession with intent to distribute (oxycodone) in violation of N.J.S. 2C:35-5(b). The case was sent up to the Superior Court of New Jersey, Hon. Richard W. English, J.S.C.. Defendant’s exposure was up to ten (10) years jail time. I was able to negotiate a pre indictment, non custodial probation (no jail), guilty plea to one third degree simple possession with the assistant prosecutor (Accusation No. 10-09- 01767-A). Because he was already on probation for an underlying offense when this resolution was reached, I represented him on the subsequent violation of probation (v.o.p.) and he was sentenced to an extension of probation (no jail) provided he got accepted into Drug Court Program and successfully complied with all rules and regulations. He was subsequently accepted into the Monmouth County Drug Court.
He simultaneously had three (3) other outstanding Counts for possession of CDS (oxycodone) and possession with intent to distribute (oxycodone) in Middlesex County before Hon. Dennis Nieves, J.S.C., (10-07-01079-1), for which he had already been indicted. I was able to resolve them with the assistant prosecutor with a guilty plea to two (2) third degree possessions with non custodial probation (no jail time), sentence to run concurrent with the Monmouth case(s), provided that he be accepted into Drug Court in Monmouth Countv and he follow all their rules and regulations. That Plea Agreement expressly provided that if he violated his probation the State could lawfully seek two (2) extended five (5) year terms in the State prison without possibility of parole.
About three (3) weeks after commencing Drug Court, defendant violated the terms of his probation by giving a fake urine, was found to be in possession of CDS and was using CDS again as evidenced by giving a “dirty” urine. Monmouth County revoked his probation and Hon. Thomas F. Scully, J.S.C. sentenced him to 4 years jail time. Interestingly, Middlesex County probation did not join in that v.o.p..
After defendant had served approximately 45 months jail time, Middlesex County Probation belatedly brought its v.o.p. seeking imposition of the two (2) five (5) year jail terms (to run consecutive) in the State prison.
I was retained to handle the Middlesex County v.o.p. and I was able to successfully
argue at the September 11, 2014, v.o.p. hearing that the Middlesex v.o.p. should be dismissed and my client be immediately released on the following grounds:
- That the State’s prosecution (twice) for the same acts violated the constitutional protections afforded by the Double Jeopardy Clause under State v. Ryan. 86 N .J.
1, pages 3, 4, (1981) and Whalen v. United States, 445 U.S. 684 (1980); and
- The doctrine of collateral estoppel operated to preclude State prosecutors in Middlesex County from going back and reopening a matter that should have been brought all at one time with the Monmouth County v.o.p. under State v. Pillot. 115 N.J. 558 (1989) and R.3:25-A-l, before a judge in the Monmouth County Superior Court; and
- Since “The State of New Jersey” is one entity, different county courts and county prosecutors are not separate entities, but indivisible parts of “The State” and prosecutors from one county are bound by acts of prosecutors in a matter being heard in multiple county courts. Ex Parte Doan, No. 03-08-00704-CR, Texas Court of Appeals, Third District, Austin. Ergo, failure of the all the actions to have been timely consolidated for hearing at one time unfairly exposed my client to an additional ten (10) years of jail time on to my client’s sentence such that he would have done fourteen (14) years jail time for one act (or set of acts), e.g.. ingesting CDS. To put that in perspective, a defendant who has committed armed robbery could be released after serving ten (10) years or less.
Middlesex County Probation withdrew its v.o.p. Complaint at the v.o.p. hearing and mv client did not have to do any of the 10 years jail time.
Hon. Dennis Nieves, J.S.C., Middlesex County, released my client into the custody of his parents that day. (See copy of Middlesex County Probation Department, Senior Probation Officer’s, written request to the Court that the v.o.p. be withdrawn.