*1 face, majority recognizes, interests. As the its “[o]n provision prohibits merger any of a school-zone conviction with 49, other violation of Section 5.” 1152. Ante A .2d at may think Court not that two convictions with the addition fees, penalties, fines, al important long and are so is as there an sentence, Legislature Although enhanced but the certainly did. may way Legislature Court not like the achieved its purpose, Legislature there can be no doubt what the about intended.
No principles prohibit appli- federal or state constitutional Legislature’s no-merger cation of provision. I judgment Appellate would reverse the of the Division. joins Justice opinion. O’HERN this WILENTZ, . For Justice and Justices affirmance —Chief CLIFFORD, HANDLER, POLLOCK STEIN—5. For reversal—Justices O’HERN and GARIBALDI—2.
STEIN, J.
case,
.2d
127
601 A
In
as
this
a defen
today, we consider whether
1149
also decided
2C:35-7,
prohibits
N.J.S.A.
violating
conviction for
dant’s
school
dangerous
within a
of
substances
controlled
distribution
second-degree
first-
zone,
a
or
merges
a conviction for
with
(Section 5),
New
provision
2C:35-5
violation (the Act) that
Act
Dangerous
Jersey’s Controlled
Substances
distribution,
dispens-
or
manufacturing,
prohibits the
generally
ing
dangerous
of controlled
substances. For the reasons set
46-56,
in Dillihay, supra,
forth
at
I following Antonio Brana was arrested the sale of over 500 grams agents. of cocaine to prior undercover Pursuant to a arrangement, undercover members of the Narcotics Task Force County of the Camden Prosecutor’s office met Brana’s co- defendant, Bravo, purchase Edwardo large amount of joined cocaine. Bravo agents the undercover in their car and *3 directed them to a location in Camden where the transaction place. was to take agents Bravo directed park the to and nearby Toyota walked to a in which passenger. Brana was the Agents cocaine, observed Brana package hand Bravo a of Bravo in agents turn sold to the returning on to their car. That 1,000 transaction occurred within feet of a school zone. After agents summoned, additional Toyota sped were the away and police Camden chased Toyota first the and then occupants its they chase, after abandoned During the car. police the car the observed gun Brana discard a Toyota. from the Brana was apprehended and charged arrested. He was with and convicted of following offenses: (N.J.S.A. 2C:35-5a(l) 1. Distribution of more than five ounces of cocaine -5b(l)) (first degree); and (N.J.S.A. 2C:35-7) (third 2. Distribution of cocaine within a school zone
degree); (N.J.S.A. Dangerous 3. to distribute Controlled Conspiracy Substances 2C:5-2); (N.J.S.A. handgun 2C:39-5b) (third 4. degree). Unlawful of a possession merged The Law (count three) Division the conspiracy violation (count into the one) distribution violation and sentenced Brana years, to fifteen five-year period with a parole of ineligibility, distributing for cocaine. imposed The court also a concurrent sentence, four-year parole years ineligibility, with three for violating (Section 2C:35-7 7 of Act or the school- statute), four-year zone a concurrent and sentence unlawful handgun. a possession of appeal Appellate
Brana notice of filed a with the Division. arguments Appellate appeal, Before the Division heard on the filed motion for with this Brana direct certification Court. granted to We the motion consider whether defendant’s third- degree for the school-zone violation should conviction distributing his conviction for cocaine. with
II principles double-jeopardy In we held that federal punish- multiple inevitably “lead to the conclusion that allow under 5 and Section 7 of ments related convictions Section 127 N.J. constitutionally impermissible.” at Act is Nevertheless, recognizing duty to construe a A.2d at 1153. our susceptible reasonably as “if it is to such statute constitutional 346, 350, 266 Profaci, 56 interpretation,” A.2d 579 7’s primary objective we that “the concluded non-merger who provision was to insure those distribute minimum drugs within a school zone receive Dillihay, supra, prescribed by Section 7.” sentence Accordingly, “the school- we held that 601 A.2d at merger of school-zone must be construed to allow zone statute second-degree provid- offenses Section 5 into first- offenses *4 drug in a school zone offense that a defendant convicted of ed less minimum sentence is sentenced to no than the 55, 601 Id. in at A.2d at provided school zone statute.” 7 result, conviction conclude that defendant’s Section As a we dangerous within a substances distribution of controlled for for his 5 conviction distri- zone must into Section school Defendant is five ounces of cocaine. of more than bution in required connec- mandatory minimum sentence subject to the 68 conviction, greater is 5 which his
tion with that mandated for the school-zone conviction. than
Ill
First,
issues.
he contends that
raises
further
Defendant
two
trial. The
assistance
counsel
he received ineffective
satisfy the
clear
has failed to
two-
record is
that defendant
Washington,
U.S.
prong Strickland test. Strickland v.
466
Second,
(1984).
S.Ct.
668,
2052,
defendant
104
80
674
L.Ed.2d
2C:35-15,
imposes mandatory
that
contends
(DEDR) penalties,
Drug
Demand Reduction
is
Enforcement
challenges
recognizes
prior
unconstitutional. Defendant
that
rejected,
urges
penalty provisions
DEDR
have been
but
wrongly.
we find those cases to have been decided
We
L.M.,
in the
Interest
State
so.
229
decline to do
See
N.J.Super.
88, 100-101,
(App.Div.1988),
We reverse much of below judgment trial court an amended and remand case to the vacating of cocaine with- defendant’s conviction distribution in a school zone under N.J.S.A. 2C:35-7. is, judgment in respects, all other affirmed.
GARIBALDI, J., dissenting. expressed my for the reasons in judgment I would affirm the 127 State v. 601 A.2d opinion today. also decided opinion. in this joins O’HERN
Justice For affirmance —Justices O’HERN and GARIBALDI —2. *5 Justice WILENTZ remandment —Chief For reversal HANDLER, CLIFFORD, and STEIN— POLLOCK and Justices