State v. GonzalezState v. Gonzalez
Defendant sold 0.17 grams of cocaine to an undercover police officer near a high school. As a result, he was convicted under the Comprehensive Drug Reform Act of 1986,
Defendant‘s arguments, which are not directed to his guilt but to various aspects of the sentencing process, are as follows:
I. THE NON-MERGER PROVISION OF
N.J.S.A. 2C:35-7 VIOLATES BOTH STATE AND FEDERAL PROHIBITIONS AGAINST DOUBLE JEOPARDY. (U.S. CONST. AMEND. V ;N.J. CONST. ART. I, PAR. II ). (Not Raised Below.)
A. New Jersey Law Requires Merger To Prevent Defendant From Being Punished Twice For The Same Offense.
B. Notwithstanding
N.J.S.A. 2C:35-7 The Defendant‘s Convictions For Distribution of CDS And Distribution Of CDS Within 1000 Feet Of School Property Should Be Merged.
II. THE “WITHIN 1,000 FEET OF ANY SCHOOL PROPERTY” PROVISION OF
N.J.S.A. 2C:35-7 VIOLATES BOTH THE STATE AND FEDERAL CONSTITUTIONS FACIALLY AND AS APPLIED (U.S. CONST. AMEND. V ,XIV ;N.J. CONST. (1947) ART. I, PAR. 1 ). (Not Raised Below.)
A. The “Within 1,000 Feet of School Property” Provision of
N.J.S.A. 2C:35-7 Is Unconstitutionally Vague On Its Face And As Applied Herein.
B. This Court Should Render
N.J.S.A. 2C:35-7 Constitutional By Limiting The Reach Of The Statute To Offenses That Occur Within Schools Or On School Property When School Is In Session And Children Are Present.
C. Application of
N.J.S.A. 2C:35-7 To The Case At Bar Denied Defendant Due Process Of Law And Equal Protection Of The Law Under The State And Federal Constitutions.
1. Defendant Was Denied His Right To Due Process Of Law (
U.S. Const. Amend. XIV AndN.J. Const. (1947) Art. I, Par. 1 ).
2. Defendant Has Been Denied His Right To Equal Protection Of The Law (
U.S. Const. Amend. XIV AndN.J. Const. (1947) Art. I, Par. 1 ).
III. THE MANDATORY DRUG ENFORCEMENT AND DEMAND REDUCTION (DEDR) PENALTIES OF
N.J.S.A. 2C:35-15 VIOLATE BOTH STATE AND FEDERAL CONSTITUTIONS.
A. N.J.S.A. 2C:35-15 Is Unconstitutional Because The Mandatory Drug Enforcement And Demand Reduction (DEDR) Penalties Discriminate Against Those Individuals Convicted Of Drug Offenses Since Individuals Convicted Of Non-Drug Offenses Are Not Exposed To Mandatory Fines. (U.S. Const. Amend. XIV ;N.J. Const. (1947), Art. I, Par. 1 ). (Not Raised Below.)
B.
N.J.S.A. 2C:35-15 Which Provides For Mandatory Drug Enforcement and Demand Reduction Penalties (DEDR) To Be Imposed On All Persons Convicted Of Offenses Enumerated In The Comprehensive Drug Reform Act Of 1986,N.J.S.A. 2C:35-15 Et Seq., Is Fundamentally Unfair And Therefore Violates The Defendant‘s Right To Due Process. (U.S. Const. Amend. XIV ;N.J. Const. (1947), Art. I, Par. 1 ). (Not Raised Below.)
C.
N.J.S.A. 2C:35-15 Which Provides For Mandatory Drug Enforcement And Demand Reduction (DEDR) Penalties To Be Imposed Upon Individuals Convicted For Drug Offenses Is Cruel And Unusual Punishment. (U.S. Const. Amend. VIII ;N.J. Const. (1947), Art. I, Par. 12 ). (Not Raised Below.)
IV. THE TWO $2,000 DEDR PENALTIES ARE ILLEGAL SINCE
N.J.S.A. 2C:35-15 MANDATES $1,000 DEDR PENALTIES FOR THIRD DEGREE OFFENSES.
V. THE TRIAL COURT ERRED IN IMPOSING A SENTENCE GREATER THAN THE PRESUMPTIVE TERM AND IN FAILING TO SET FORTH REASONS ON THE RECORD.
The State concedes that the DEDR penalty for each conviction must be reduced because it exceeds $1,000, the sum mandated by
Defendant‘s challenges to Section 7 have been rejected by this court in several opinions to which we subscribe. State v. Blow, 237 N.J. Super. 184, 567 A.2d 253 (App.Div. 1989) (sustaining constitutionality of non-merger provision of Section 7), State v. Anaya, 238 N.J. Super. 31, 568 A.2d 1208 (App.Div. 1990) (rejecting interpretation of Section 7 that would limit non-merger to mandatory minimum prison term), and State v. Ogar, 229 N.J. Super. 459, 551 A.2d 1037 (App.Div. 1989) (rejecting other challenges to constitutionality of Section 7).
Our colleague‘s dissent prompts a brief response.
Recognizing that in some cases non-merger would be contrary to the general merger provisions of the Code found in
The non-merger provision of Section 7 affects only Section 5 crimes for which there would otherwise be a merger under
Section 5 crimes that would merge “into” the Section 7 crime under ordinary merger principles are third-degree 5b(3), third-degree 5b(5), third-degree 5b(9), fourth-degree 5b(12), third-degree 5b(13) and fourth-degree 5b(14). These Section 5 crimes, which do not have a minimum quantity of CDS as an element, are of the same or lower degree than the Section 7 crime and do not carry a mandatory period of parole ineligibility. The Section 7 crime, which carries a mandatory period of parole ineligibility, ordinarily would not merge “into” any of them, see State v. Connell, 208 N.J. Super. 688, 696, 506 A.2d 829 (App.Div. 1986). Thus as to these offenses, there is no need for a provision in Section 7 to prevent merger of that crime “into” a Section 5 offense, the only function our dissenting colleague attributes to that provision.
The only Section 5 crime that does not have dealing in a minimum quantity of CDS as an element and is of a higher degree than the third-degree Section 7 crime is second-degree 5b(7), dealing in less than 100 milligrams of lysergic acid diethylamide or less than 10 grams of phencyclidine. We do not believe that the Legislature intended that the only effect of the non-merger provision of Section 7 would be to prevent a merger of dealing in CDS near a school “into” the 5b(7) crime. The provision itself bars merger “with,” not “into,” a Section 5 conviction. Also, the Legislature knew that there was no need to prevent such merger solely to preserve the mandatory parole ineligibility feature of Section 7, as contended in the dissent, because we previously had held that that feature of the sentence is preserved in a merger. State v. Connell, supra (construing the effect of merging a Graves Act offense that carries a mandatory minimum period of parole ineligibility). “It is well settled that in construing a statute it is to be assumed that the Legislature was and is thoroughly conversant
We are satisfied from a careful review of this record that the other issues raised are clearly without merit and require no further discussion. R. 2:11-3(e)(2).
The matter is remanded to modify the judgment by reducing the DEDR penalties from $2,000 to $1,000 for each conviction. The convictions are otherwise affirmed.
SKILLMAN, J.A.D., concurring in part and dissenting in part.
I interpret the antimerger provision of
I
It is the court‘s responsibility in construing a statute “to effectuate the legislative intent in light of the language used and the objects sought to be achieved.” State v. Maguire, 84 N.J. 508, 514, 423 A.2d 294 (1980). In performing this responsibility, “[w]e must search for indications of legislative intent or for the inferences that may be drawn from the structure and purpose of the statute.” State v. Downie, 117 N.J. 450, 464, 569 A.2d 242 (1990).
To determine the probable intent of the Legislature in including the antimerger provision in
The circumstances under which one offense merges into another are specifically set forth in the Code of Criminal Justice (the Code).
(1) One offense is included in the other, as defined in subsection d. of this section;
(2) One offense consists only of a conspiracy or other form of preparation to commit the other;
(3) Inconsistent findings of fact are required to establish the commission of the offenses; or
(4) The offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.
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. Where the violation involves less than one ounce of marijuana, the 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 one year, whichever is greater, during which the defendant shall be ineligible for parole. In all other cases, the 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 subsection b. of N.J.S. 2C:43-3, a fine of up to $100,000.00 may also be imposed upon any conviction for a violation of this section.
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 added].
The essential objective of
However, the fact that the Legislature intended to preserve the mandatory parole ineligibility period required by
The more restrictive interpretation which I would give the antimerger provision of
Another principle supporting this conclusion is that statutes should be construed so as to preserve their constitutionality. State v. LeFurge, 101 N.J. 404, 423, 502 A.2d 35 (1986); State v. Profaci, 56 N.J. 346, 350, 266 A.2d 579 (1970). In State v. Davis, supra, 68 N.J. at 80, 342 A.2d 841, the court stated that “[w]ere the Legislature, in attempting to create separate crimes, to do no more than simply apply different labels to what
The majority‘s essential thesis is that the intent I ascribe to the antimerger provision of
We reject defendant‘s statutory argument that the non-merger provision of
N.J.S.A. 2C:35-7 merely prohibits the merger of that offense into an offense embodied in chapters 35 and 36 so as to avoid the mandatory period of parole ineligibility. Reading the provision to authorize merger of 2C:35-5 and 35-6 offenses into 2C:35-7 would require merger of certain more serious offenses into the third degree crime embodied in the latter section. We find no legislative intent supporting the proposition thatN.J.S.A. 2C:35-7 permits the merger of offenses, provided that the mandatory minimum is maintained. Rather, we read the legislative intent, with reference toN.J.S.A. 2C:1-8 , as requiring the entry of separate convictions. The use of the words “merge with” (emphasis added) in 2C:35-7 supports this conclusion. [238 N.J. Super. at 39, 568 A.2d 1208].
I disagree with the Anaya court‘s assumption that to interpret the antimerger provision of
II
Applying these principles to this case, I conclude that defendant‘s convictions should merge. Under
I am also satisfied that the offenses would merge under the flexible merger test set forth in cases such as State v. Davis, supra, 68 N.J. at 78, 342 A.2d 841 and State v. Truglia, 97 N.J. 513, 520-521, 480 A.2d 912 (1984), because the prohibition against the distribution of cocaine set forth in
Accordingly, I would remand the matter for entry of an amended judgment vacating defendant‘s conviction under