State v. BlowState v. Blow
The principal issue in this case is whether refusal to merge the defendant‘s convictions of possession of controlled dangerous substance (CDS) with intent to distribute and possession with intent to distribute within 1,000 feet of a school, as mandated by our Legislature, is constitutionally permissible. Defendant Raymond Blow appeals from the sentences imposed pursuant to a plea agreement with the Passaic County Prosecutor‘s Office. Defendant was indicted for possession of heroin (
Defendant was sentenced on Count 3 to imprisonment for a period of five years, three years without parole eligibility. Defendant was given the same sentence on Count 2, concurrently with Count 3. Both sentences were consecutive to the sentence defendant was then serving. Defendant, on each of Counts 2 and 3, was ordered to pay a $1,000 drug enforcement penalty, a $50 laboratory fee, and a $30 Violent Crimes Compensation Board penalty. His driver‘s license was revoked for
Defendant makes the following arguments on appeal: (1) the conviction of possession of CDS with intent to distribute should be merged with the conviction of possession of CDS with intent to distribute within 1,000 feet of a school; (2) New Jersey law requires merger to prevent defendant from being punished twice for the same offense; (3) notwithstanding
I.
Appellant contends that his convictions on Counts 2 and 3 should have been merged and that the sentencing judge‘s failure to merge those convictions was “incompatible with constitutional considerations and merger would not negate the intention of the legislature.”
Any person who violates subsection a. of N.J.S. 2C:35-5 by distributing, dispensing or possessing with intent to distribute a controlled dangerous substance or controlled substance analog while on any school property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of such school property or a school bus, or while on any school bus, is guilty of a crime of the third degree and shall, except as provided in N.J.S. 2C:35-12, be sentenced by the court to a term of imprisonment.... [t]he term of imprisonment shall include the imposition of a minimum term which shall be fixed at, or between, one-third and one-half of the sentence imposed, or three years, whichever is greater, during which the defendant shall be ineligible for parole. .. .
Notwithstanding the provisions of N.J.S. 2C:1-8 or any other provisions of law, a conviction arising under this section shall not merge with a conviction
for a violation of subsection a. of N.J.S. 2C:35-5 (manufacturing, distributing or dispensing) or N.J.S. 2C:35-6 (employing a juvenile in a drug distribution scheme). [Emphasis supplied].
Under the Criminal Code, “[w]hen the same conduct of a defendant may establish the commission of more than one offense,” the defendant may not “be convicted of more than one offense if ... [o]ne offense is included in the other.”
However, “there is no question but that the legislature is empowered to split a simple, continuous transaction into stages, elevate each stage to a consummated crime, and punish each stage separately.” State v. Davis, 68 N.J. 69, 78 (1975). Defendant, however, stresses “the prohibition against multiple punishment for a single wrongdoing” enunciated in Davis. Id. at 77.
In Davis, our Supreme Court declined to determine whether the proscription against “double jeopardy” applies not only to “repeated piecemeal prosecution,” but also to “a single trial context with asserted multiple punishment arising from convictions based on a multi-count indictment with each count therein allegedly setting forth the same offense.” 68 N.J. at 76. The court, however, stated that “[i]f an accused has committed only one offense, he cannot be punished as if for two.” Id. at 77.
In Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932), the Supreme Court stated, “[t]he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.” This test was recently reaffirmed by the Supreme Court in Ball v. United States, 470 U.S. 856, 861, 105 S.Ct. 1668, 1671, 84 L.Ed.2d 740, 746 (1985). However, in Missouri v. Hunter, the Supreme
Nonetheless, we must examine whether, despite Davis’ “fundamental point” that “[i]f an accused has committed only one offense he cannot be punished as if for two,” Davis, 68 N.J. at 77, “multiple punishment” under
In this State, when each offense contains a separate and distinct element from the other, our courts have not hesitated to find that the charges do not merge. See State v. Bowens, 108 N.J. 622, 639 (1987); State v. Crouch, 225 N.J. Super. 100, 109 (App.Div. 1988); State v. Jackson, 204 N.J. Super. 13, 23 (App.Div. 1983), aff‘d sub nom. State v. Hardison, 99 N.J. 379 (1985). See also United States v. Wright-Barker, 784 F.2d 161, 173 (3d Cir.1986); United States v. Kenny, 462 F.2d 1205, 1215 (3d Cir.), cert. den., 409 U.S. 914, 93 S.Ct. 233, 34 L.Ed.2d 176 (1972); United States v. Kafes, 214 F.2d 887, 891 (3d Cir.), cert. den., 348 U.S. 887, 75 S.Ct. 207, 99 L.Ed. 697 (1954). In the present case, however, the charges do not each contain a distinct element. The charge under
Our case law concerning statutes in which the elements of the offenses overlap, with only one offense containing additional elements, is divided. If all of the elements of one offense are part of the proof necessary to establish a violation of another offense, the first charge is generally known as a lesser-included offense, and merger of the two charges is ordinarily mandated. State v. Jones, 213 N.J. Super. 562, 568 (App.Div. 1986). See also State v. Battle, 209 N.J. Super. 255, 259 (App.Div.), certif. den., 105 N.J. 560, 561 (1986); State v. Johnson, 203 N.J. Super. 127, 134-35 (App.Div.), certif. den., 102 N.J. 312 (1985); State v. Lore, 197 N.J. Super. 277, 284 (App.Div. 1984). However, we have held that when the elements of two offenses overlap, but are not identical, with one offense containing an additional element which the State must prove, merger is not required, and the defendant may be charged with both offenses. See State v. Bogus, 223 N.J. Super. 409, 418-19 (App.Div.), certif. den., 111 N.J. 567 (1988); State v. Potts, 200 N.J. Super. 488, 495 (Law Div. 1985). The Potts court gave as the basis for its determination the rationale that “[t]he element of culpability [of aggravated manslaughter] is greater than mere recklessness,” the element of culpability of death by auto. 200 N.J. Super. at 495.
As noted,
“[F]ractionalization of offenses may be proper where the acts are in fact distinct, where the Legislature intended them to be punished separately and where the fractionalization does not otherwise violate principles of due process and double jeopardy.” State v. Best, 70 N.J. 56, 69 (1976), citing Davis, 68 N.J. at 78. The Davis Court stated that “the legislature may... within its constitutional authority, devise reasonable means to combat a social evil such as illegal trafficking in drugs and may endeavor to deter the recurrence of the proscribed conduct.” 68 N.J. at 78. We noted in State v. Fraction, 206 N.J. Super. 532, 537 (App.Div. 1985), that “legislative design in enacting overlapping laws incriminating the same unlawful conduct” is an element to be considered by this court in determining whether appellant‘s convictions should be merged.
We are convinced that the Legislature‘s non-merger mandate under section 7 does not result in “simply apply[ing] different labels to what is in fact the same charge.” Davis, 68 N.J. at 80. In some cases an attack on grounds of merger may implicate the substantive and constitutional rights of a defendant. State v. Rodriguez, 97 N.J. 263, 271 (1984). Here, however, we are satisfied that, because of the appropriateness of the Legislature‘s non-merger policy in furthering its goal of stopping drug traffic in school zones, no federal or state constitutional rights are violated. See Hunter, 459 U.S. at 366-67, 103 S.Ct. at 678-79, 74 L.Ed.2d at 542-43; DeLuca, 108 N.J. at 102.
The Legislature has made it clear that it expects that a defendant will be separately charged under
II.
Appellant urges that the presumptive sentence for his conviction is four years, and that the five-year maximum imposed was erroneous because “the sentencing judge‘s weighing of aggravating and mitigating factors was fatally flawed....”
Appellant claims that the court‘s recitation of the nature of the offense and the need to deter both rely upon elements of the crimes of which he was convicted, and thus are improper. See State v. Link, 197 N.J. Super. 615, 620 (App.Div. 1984), certif. den., 101 N.J. 234 (1985). The trial court did not simply rely on elements of the crimes. The court considered the number of transactions the police observed, the quantity of drugs and money involved, and number of heroin-filled glassine envelopes found on defendant. Our Supreme Court in Davis, noted that in dealing with individuals who distribute drugs it has been deemed necessary to “`turn the screw of the criminal machinery — detection, prosecution, and punishment — tighter and tighter.‘” 68 N.J. at 80, quoting Gore v. United States, 357 U.S. 386, 392, 78 S.Ct. 1280, 1284, 2 L.Ed.2d 1405, 1410, reh‘g den. 358 U.S. 858, 79 S.Ct. 13, 3 L.Ed.2d 92 (1958).
Defendant‘s record reveals that although he was only 22 when sentenced in the present matter, he had already been arrested four times as a juvenile on various property offenses, and nine times as an adult on a variety of offenses, including drug, property, and assault charges. In addition, appellant was on probation but continued to openly sell drugs as reflected by his latest offenses. Thus, the sentencing judge properly considered “the substantial risk that defendant will commit other offenses.”
III.
Appellant also contends that the imposition of a $50 laboratory fee on each of the two offenses, which involved only one CDS specimen, constitutes an excessive fine in violation of the Sixth Amendment to the United States Constitution. Appellant cites no authority for this proposition.
IV.
Finally, appellant contends that the trial court erred in suspending appellant‘s driver‘s license for two years on one count, and an additional year on the other. Question 25a of the Supplemental Plea Form For Drug Offenses, which appellant signed, stated, “Do you understand that if you plead guilty ... [y]ou will be required to forfeit your driver‘s license for a period of time from 6 to 24 months?” See
Appellant‘s convictions and sentences are affirmed, except as to appellant‘s driver‘s license forfeiture which is reduced to 24 months.