STATE OF NEW JERSEY v. JAMES T. CRAWFORD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3237-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES T. CRAWFORD, a/k/a

TRAVIS CRAWFORD, ALTARIQ POOLE,

ALTARIQ CRAWFORD, JAMES WOODS,

Defendant-Appellant.

December 16, 2010

Submitted October 4, 2010 - Decided

 
Before Judges Lisa and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-12-3724.

Yvonne Smith Segars, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant James T. Crawford appeals both the sentence imposed after the entry of an unconditional guilty plea to drug distribution, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3), as well as the denial of his application for reconsideration of the sentence. We affirm.

Despite the notice of appeal specifying that defendant sought review of the decision to deny his motion for reconsideration, and although the written opinion of the court is supplied in defendant's appendix, defendant does not address the issue in his brief. We will assume that the appeal on that point is withdrawn. See Jefferson Loan Co. v. Session, 397 N.J. Super. 520, 525 n. 4 (App. Div. 2008).

We note, however, that the trial judge on the application for reconsideration addressed the principal issue defendant raises on this appeal, namely, that he should have been sentenced on the guilty plea pursuant to a different statute to a lesser crime. The argument is premised on defendant's claim that Alprazolam, or Xanax, falls under the category of prescription legend drugs, not controlled dangerous substances, and that therefore defendant should have been sentenced in the fourth-degree range and not the third-degree range. See N.J.S.A. 2C:43-1 and 2C:43-6. Defendant's points on appeal are:

THE INDICTMENT SHOULD BE DISMISSED OR THE DEFENDANT SHOULD BE SENTENCED AS A FOURTH DEGREE OFFENDER (Partially Raised Below)

A. THE INDICTMENT SHOULD BE DISMISSED BECAUSE THE LAW THAT WAS BREACHED BY DEFENDANT WAS PROMULGATED IN VIOLATION OF THE SEPARATION OF POWERS DOCTRINE (Not Raised Below)

B. THE DEFENDANT SHOULD BE SENTENCED AS A FOURTH DEGREE OFFENDER, AS XANAX IS A PRESCRIPTION LEGEND DRUG

Defendant entered a guilty plea to the sale of one Xanax pill and on May 11, 2007, in accord with the plea agreement, was sentenced to three years imprisonment. Appropriate fines and penalties were assessed. His motion for reduction of sentence was denied on October 17, 2007. When he established his factual basis, defendant testified that while "in the area of Broad and Market Street[s]" in Newark on August 23, 2006, he possessed Alprazolam, or Xanax, and unlawfully sold one pill.

Defendant first challenges the legality of the indictment to which he entered a guilty plea based on a "separation of powers" argument. We will not address the claim for the following reasons. Rule 3:9-3(f)1 provides the mechanism enabling a defendant to enter a guilty plea while preserving issues for review with the State's consent. State v. Knight, 183 N.J. 449, 471 (2005). Absent compliance with the rule's requirements, defendant, whose guilty plea is not otherwise repudiated, cannot now be heard to challenge the legality of the indictment. Having entered an unconditional plea, defendant may only raise Fourth Amendment claims or appeal the denial of admission into pretrial intervention. Ibid. Accordingly, defendant's attack on the indictment is barred by court rule, as the issue was not preserved and is not otherwise eligible for consideration.

Additionally, Rule 3:10-2(c) provides that any challenges to the indictment "must be raised by motion before trial. Failure to so present any such defense constitutes a waiver thereof . . . ." As the State points out in its brief, defendant's failure to raise this argument before the entry of his guilty plea bars him from doing so at this juncture. See State v. Allah, 170 N.J. 269, 281-82 (2002). An exception may be made for "good cause;" none has been asserted. R. 3:10-2(c).

Even if we were to address the merits, defendant's separation of powers argument fails. The Legislature is permitted to delegate its authority to "the agency charged with the administration of a law . . . ." Little Ferry v. Bergen Cnty. Sewer Auth., 9 N.J. 536, 544 (1952). Here, the Director of the Division of Consumer Affairs2 in the Department of Law and Public Safety (Director) is authorized to classify controlled dangerous substances prohibited by N.J.S.A. 2C:35-2, the source statute for defendant's prosecution under N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3). See N.J.S.A. 24:21-3. The schedule of controlled dangerous substances is found in N.J.S.A. 24:21-5 to -8.1. Those schedules may be amended by regulation; the Director is vested with authority to criminalize the possession of particular drugs. N.J.S.A. 24:21-3. The specific process challenged here has previously been found lawful. See State v. Metcalf, 168 N.J. Super. 375, 378-80 (App. Div.), certif. denied, 81 N.J. 411 (1979).

Xanax was properly made a Schedule IV drug by regulation, contrary to defendant's persistent belief it is a prescription legend drug. The mere omission of Xanax from the drugs named in N.J.S.A. 24:21-8 is not a reason to reverse defendant's conviction. Xanax is specifically named by the Director in the Administrative Code. See N.J.A.C. 8:65-10.4;3 DEA Schedules of Controlled Dangerous Substances, 21 C.F.R. 1308.14 (2010). Thus, in any event, this challenge to the indictment lacks merit.

Defendant's second contention is equally flawed. As we have said, Xanax is not a prescription legend drug; it is a Schedule IV drug. The sale of even one pill enumerated in Schedule IV subjects defendant to sentencing in the third-degree drug distribution range. N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3). The sentencing outcome defendant suggests is a legal impossibility; it contravenes the Code's strictures.

1 Rule 3:9-3(f) states:

With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty reserving on the record the right to appeal from the adverse determination of any specified pretrial motion. If the defendant prevails on appeal, the defendant shall be afforded the opportunity to withdraw his or her plea. Nothing in this rule shall be construed as limiting the right of appeal provided for in [Rule] 3:5-7(d).

2 Defendant refers to the "Commissioner" in his brief, but we will assume he means the Director because only the Director has the authority under N.J.S.A. 24:21-3 to classify controlled dangerous substances.

3 Alphazolam is the equivalent of Alprazolam.