STATE OF NEW JERSEY VS. JOE D. NICOLAS (15-09-1200, BERGEN COUNTY AND STATEWIDE), A-4852-17T1

On April 23, 2015, police arrested Joe D. Nicolas after an undercover buy and charged him with second-degree and third-degree possession of alpha‑PVP ("flakka").
Nicolas moved to dismiss the indictment, arguing alpha‑PVP was not a controlled dangerous substance under New Jersey law; the trial court denied the motion on May 25, 2017.
Nicolas pleaded guilty on January 26, 2018 to third‑degree possession; his plea form attempted to reserve the right to appeal the denial of the dismissal motion, but the plea judge’s on‑the‑record colloquy did not acknowledge that reservation.
The DEA temporarily placed alpha‑PVP in Schedule I in 2014; the New Jersey Director of Consumer Affairs did not object within thirty days to the federal scheduling.
New Jersey regulations deem federal scheduling effective in New Jersey after thirty days unless the Director objects, so the Appellate Division concluded alpha‑PVP was a Schedule I CDS in New Jersey at the time of arrest.
The court allowed review of the preserved scheduling issue (Point I) as consistent with the parties’ reasonable expectations but declined to address an unpreserved void‑for‑vagueness claim (Point II).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether alpha‑PVP was a Schedule I CDS in NJ on April 23, 2015	Federal Schedule I designation became NJ law because the Director did not object within 30 days	Director never published or formally recognized alpha‑PVP in NJ, so possession was not unlawful	Affirmed: NJ regulations automatically adopt federal schedules after 30 days absent a Director objection; alpha‑PVP was Schedule I in NJ
Whether Nicolas waived appellate review of the motion to dismiss by pleading guilty	State conceded the plea was intended as conditional and should preserve the motion to dismiss	Nicolas reserved the right to appeal the denial of the dismissal motion on his plea form	Court permitted review of Point I on fairness grounds given the parties’ expectations
Whether the CDSA is unconstitutionally vague (void‑for‑vagueness/due process)	State: claim not preserved below or reserved in plea	Nicolas: statutory/administrative scheme too vague to give fair notice	Not reached: claim was not preserved or reserved, so court declined to decide

State v. Davila, 443 N.J. Super. 577 (App. Div. 2016) (conditional guilty plea reservation must be placed on the record)
State v. Bellamy, 178 N.J. 127 (2003) (fairness and reasonable expectations in plea bargaining)
State v. Hogan, 144 N.J. 216 (1996) (indictment dismissal standard: only on clearest and plainest grounds)
State v. Nash, 212 N.J. 518 (2013) (legal conclusions reviewed de novo)
Kadonsky v. Lee, 452 N.J. Super. 198 (App. Div. 2017) (Director may revisit or reschedule substances and is not strictly bound to federal scheduling determinations)