STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. FRANK GONZALEZ, DEFENDANT-APPELLANT.
Supreme Court of New Jersey
Argued January 2, 1990—Decided April 9, 1991.
588 A.2d 816 | 123 N.J. 462
Nancy Permes Barton, Deputy Attorney General, argued the cause for respondent (Robert J. Del Tufo, Attorney General of New Jersey, attorney).
PER CURIAM.
A jury convicted defendant, Frank Gonzalez, of unlawful distribution of cocaine, a violation of
Rejecting defendant‘s argument that the trial court should have merged the Section 5 and the Section 7 offenses, the Appellate Division affirmed, State v. Gonzalez, 241 N.J.Super. 92, 574 A.2d 487 (1990), relying on Section 7‘s antimerger provision, which reads:
Notwithstanding the provisions of
N.J.S. 2C:1-8 [dealing with prosecution of conduct that constitutes more than one offense] 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) orN.J.S. 2C:35-6 (employing a juvenile in a drug distribution scheme).
Judge Skillman dissented from so much of the majority opinion as upheld defendant‘s conviction and sentence under
We reverse the judgment below to the extent that it affirms defendant‘s conviction of the Section 5 offense and prohibits its merger into the Section 7 violation. We do so substantially on the basis of the perceptive analysis contained in Judge Skillman‘s dissent, in which he addresses—correctly, in our view—(1) the law of merger, 241 N.J.Super. at 99-100, 106-08, 574 A.2d 487; (2) the antimerger provision of Section 7, id. at 100-03, 104-06, 574 A.2d 487; and (3) applicable principles of statutory construction, id. at 103-04, 574 A.2d 487.
We add a note of caution, however. Judge Skillman‘s opinion can be read to allow, when general merger principles would apply, the merger of all
The judgment of the Appellate Division is reversed in part, and the cause is remanded to the trial court for entry of an amended judgment vacating defendant‘s conviction under
O‘HERN, J., dissenting.
It is one thing to sell drugs; it is another thing to sell drugs on school grounds; it is still another thing to employ children in the drug trade. The Legislature has viewed those acts as posing distinct threats to society. It has made each of them a separate criminal offense. It has prescribed separate and distinct punishments for each of the offenses.
The Legislature has expressly stated that the distinct offenses shall not merge.
Notwithstanding that the Legislature has expressly stated that courts should not merge those distinct offenses, this Court has done exactly that. Profits are the key to the drug trade. Putting aside for a moment the range of sentences involved, the
I say that no principle of statutory law compels that result because the Legislature itself has prescribed that there shall be no statutory merger. The ordinary principles of statutory merger of convictions, see
In contrast to the double jeopardy protection1 against multiple trials, the final component of double jeopardy—protection against cumulative punishments—is designed to ensure that the sentencing discretion of courts is confined to the limits established by the legislature. Because the substantive power to prescribe crimes and determine punishments is vested with the legislature, the question under the Double Jeopardy Clause whether punishments are “multiple” is essentially one of legislative intent.
[Ohio v. Johnson, 467 U.S. 493, 499, 104 S.Ct. 2536, 2540-41, 81 L.Ed.2d 425, 433 (1984) (citations omitted).]
To understand how the first two components of double jeopardy relate to today‘s issue, we need to give an example. Let us assume that the State had first tried defendant for a sale of drugs on school property committed on October 26, 1987, under Section 7. Under no circumstances would we ever say that he could later be tried for a straight sale of drugs (the Section 5 violation) if but a single sale had occurred at that time. That is the “slice of life” for which you can only be put in jeopardy once. The Supreme Court has recently affirmed that principle. Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990).
In applying the third aspect of double jeopardy to this case, we must examine the common-law doctrine of merger. The judicial and statutory doctrines of merger are essentially driven by considerations of fairness. In recent years, the Court has eschewed the mechanical application of formulas to determine whether the merger doctrine applies. Instead, the Court uses
a certain flexibility of approach * * *, attended by considerations of “fairness and fulfillment of reasonable expectations in the light of constitutional and common law goals.” Such an approach would entail analysis of the evidence in terms of, among other things, the time and place of each purported violation; whether the proof submitted as to one count of the indictment would be a necessary ingredient to a conviction under another count; whether one act was an integral part of a larger scheme or episode; the intent of the accused; and the consequences of the criminal standards transgressed. Certainly there are other factors to be considered and, along with the above, accorded greater or lesser weight depending on the circumstances of the particular case.
[State v. Davis, 68 N.J. 69, 81, 342 A.2d 841 (1975) (citation omitted).]
In Davis, convictions on separate counts of unlawful possession and unlawful sale of a narcotic drug did not merge because evidence showed that the possession was not purely incidental to imminent distribution. Id. at 83-84, 342 A.2d 841. The defendant was both a seller and a user. The Court found a clear legislative intent, id. at 78, 342 A.2d 841, to punish each
In State v. Mirault, 92 N.J. 492, 457 A.2d 455 (1983), we merged a conviction of aggravated assault into a conviction of robbery. We did so in part because the former offense had already fulfilled the distinct legislative purpose of elevating the grade of the robbery to first-degree, then the highest crime other than murder of which one could be convicted. By virtue of the assault conviction, then, the defendant was exposed under the robbery count to a fifteen-year presumptive sentence. We noted, however, that had the State charged assault on a police officer, the merger considerations would be different for several reasons, particularly the status of the victim as a police officer. We said that the legislative concern for the police may well have evidenced a specific intent to fractionalize the event. In State v. Best, 70 N.J. 56, 69, 356 A.2d 385 (1976), the Court recognized that the Legislature may fractionalize a single criminal episode into separate offenses when the acts are in fact distinct, when the Legislature intends them to be punished separately, and when the fractionalization does not offend constitutional principles. In State v. Miller, 108 N.J. 112, 527 A.2d 1362 (1987), we recognized that the single criminal episode of committing a sexual assault on a child and endangering the welfare of a minor in one‘s custody represented separate offenses that the Legislature intended to punish separately.
Perhaps Chief Justice Warren best expressed the nature of the doctrine of merger with respect to punishment: “The problem of multiple punishment is a vexing and recurring one.” Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 1285, 2 L.Ed.2d 1405, 1411 (1958) (Warren, C.J., dissenting). He gave an easy illustration of when a single event might require two punishments. The single act of selling liquor on a Sunday night might warrant separate punishments for violation of a prohibition law and a blue law. Similarly, selling drugs on
In every instance the problem is to ascertain what the legislature intended. Often the inquiry produces few if any enlightening results. Normally these are not problems that receive explicit legislative consideration.2 But this fact should not lead the judiciary, charged with the obligation of construing these statutes, to settle such questions by the easy application of stereotyped formulae. It is at the same time too easy and too arbitrary to apply a presumption for or against multiple punishment in all cases or even to do so one way in one class of cases and the other way in another. Placing a case in the category of unit-of-offense problems or the category of overlapping-statute problems may point up the issue, but it does not resolve it.
Where the legislature has failed to make its intention manifest, courts should proceed cautiously, remaining sensitive to the interests of defendant and society alike. All relevant criteria must be considered and the most useful aid will often be common sense.
[Id. at 394, 78 S.Ct. at 1285, 2 L.Ed.2d at 1411.]
In Gore, Chief Justice Warren was convinced, on the basis of the origins and structure of the statutes, that the purpose of the statutes was to ensure that the prosecutor had “three avenues by which to prosecute one who traffics in narcotics, and not to authorize three cumulative punishments for the defendant who consummates a single sale.” Ibid. In contrast, in our case, it is overwhelmingly clear that the Legislature intended that there be cumulative punishments; the “explicit legislative consideration” sought by Chief Justice Warren is present here.
Passing over the differences between Section 5 and Section 7 of
The Legislature‘s express statement that an offense under
N.J.S.A. 2C:35-7 shall not merge “with” seems to clearly prohibit exactly what [the majority] suggests it permitted.N.J.S.A. 2C:35-7 does not permit merger of offenses underN.J.S.A. 2C:35-5 intoN.J.S.A. 2C:35-7 , or vice versa, provided that the ineligibility term survives. It plainly prohibits the merger of each “with” the other. [The] conclusion [of the majority here] would have support if the Legislature inN.J.S.A. 2C:35-7 permitted the merger of one offense “into” the other, or didn‘t bar their merger, so long as the ineligibility term survived. The Legislature certainly knew how to provide for the survival of the mandatory ineligibility term without prohibiting merger when, for example, it enacted the Graves Act,N.J.S.A. 2C:43-6c , which requires imposition of a mandatory ineligibility term but does not prohibit merger of Graves Act and other offenses.
In sum, no constitutional principle forbids the Legislature to impose separate punishments for separate offenses against society. Nothing has changed since Davis and Gore. State v. DeLuca, 108 N.J. 98, 527 A.2d 1355, cert. denied, 484 U.S. 944, 108 S.Ct. 331, 98 L.Ed.2d 358 (1987), involved the problem of multiple prosecutions, not multiple punishments. In that case, we made it clear that if a second offense (assume, the sale of drugs generally) requires no proof beyond that which is required for a conviction of the first offense (the sale of drugs on school property), the two offenses are the same for double-jeopardy purposes. However, that, as I say, involves the entirely different proposition of two bites at the apple, which is clearly covered by the double-jeopardy clause. There is no aspect of that here.
A final thought on the problem of “fairness.” Perhaps a stronger argument for the Court‘s position could be made if we had not already dealt with the problem of consecutive sentencing. As we learned at oral argument, the prison time for the two offenses is most often run concurrently. Any consecutive features of prison sentences would be governed by the strictures of State v. Yarbough, 100 N.J. 627, 498 A.2d 1239 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed.2d 308 (1986). All that the Court really accomplishes is to give the person pushing drugs on school property a record with one conviction and not two, and in effect no DEDR fine at all for making the sale on school property.
For reversal in part; remandment—Chief Justice WILENTZ, and Justices CLIFFORD, HANDLER, POLLOCK and STEIN—5.
For affirmance—Justices O‘HERN and GARIBALDI—2.