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The indictment of a New Jersey man who was convicted of using a substance that at the time of his arrest fell under federal guidelines as illegal, though state authorities didn't immediately add it to its list of controlled dangerous substances, was upheld by an appellate panel.

In March 2018, Joe D. Nicolas pleaded guilty to third-degree possession of 100 grams of a controlled dangerous substance called alpha-pyrrolidinopentiophenone (alpha-PVP), also known as "flakka," in violation of N.J.S.A. (2C:35-10 (a) (1).

The drug was classified as a Schedule I drug by federal authorities not long before the arrest.

The director of the state Division of Consumer Affairs "was not obligated to provide notice that alpha-PVP was added to Schedule I the moment it became a CDS, " wrote Appellate Division Judge Mary Gibbons Whipple in a published opinion Monday. "We affirm."

The panel also consisted of Judges Greta Gooden Brown and Hany A. Mawla. The case was on appeal from Bergen County Superior Court.

According to the decision, a trial judge previously denied Nicolas' motion to dismiss the indictment. Nicolas appealed, contending that the judge erred because flakka was not illegal under New Jersey law at the time of his arrest.

He also argued that his convictions should be reversed, and that he was denied due process by a vaguely worded statutory and unclear administrative law scheme.

Whipple said he failed to make his case on all three points, and the trial judge didn't abuse his authority.

Joseph E. Krakora of the New Jersey Office of the Public Defender represented defendant Nicolas. Bergen County Prosecutor Mark Musella represented the state. Neither could be reached for comment.

According to the decision, on April 23, 2015, narcotics officers arrested Nicolas after a successful undercover "buy-bust" operation in Fort Lee. He was charged with second- and third-degree drug possession charges.

Two years later, on May 25, 2017, Nicolas appeared before a trial judge on a motion to dismiss the indictment, arguing that alpha-PVP was not illegal to possess under New Jersey law at the time of his arrest. The judge denied his motion.

On Jan. 26, 2018, Nicolas pleaded guilty to the third-degree charge. The second-degree charge was dismissed. He was sentenced to three years of probation, according to the decision.

The court noted that Nicolas' plea was conditioned on reservation of the right to appeal the conviction.

"Here, the State concedes that denying defendant appellate review of his failed motion to dismiss the indictment would effectively thwart the 'reasonable expectations' on which he pled guilty," Whipple wrote.

But, "Adhering to this standard of review, we reject defendant's argument that alpha-PVP was not considered a Schedule I drug at the time of his arrest," the judge said.

The panel said the New Jersey Controlled Dangerous Substances Act grants the authority to schedule and control certain substances to the state director of Consumer Affairs, which is under the Department of Law and Public Safety.

Once the federal government schedules a substance, a provision of the act, N.J.S.A. 24:21-3(c), gives the state director 30 days to do one of two things: Control the substance consistent with the federal government's scheduling, or file an objection to the substance's federal scheduling in the New Jersey Register.

"Absent is a requirement that the Director give notice when he or she intends to control the substance as directed by federal law," the Appellate Division ruled. "Thus, if the Director fails to file an objection to the federal government's scheduling within thirty days, as was the case with alphaPVP, the Director must control the substance consonant with federal law."

In 2014—a year before Nicolas's arrest—the deputy administrator of the U.S. Drug Enforcement Agency temporarily placed alpha-PVP in Schedule I, according to the decision.

The state DCA director "declined to object to the DEA's designation of alpha-PVP in Schedule I. Thus, at the time of defendant's 2015 arrest, alpha-PVP was a Schedule I drug under both federal and New Jersey law," Whipple wrote.

Contrary to Nicolas's assertion, Whipple said the state director had neither the duty to update New Jersey's list of controlled substances through publication in the New Jersey Register nor file an objection to the federal government's scheduling of the substance within the 30-day time frame.

Doing neither did not automatically make alpha-PVP legal in New Jersey at that time Nicolas was arrested as he claims, the judge said. "And, for that reason, the judge properly denied defendant's motion to dismiss the indictment."

With regard to Nicolas' void-for-vagueness argument, Whipple said, such was "neither reserved in defendant's guilty plea nor raised in his motion to dismiss the indictment."

"We will not disturb the denial of such a motion 'unless [the judge's discretionary authority] has been clearly abused,'" Whipple said.