*1 enjoined from restrained and respondent ORDERED that he suspension his during period of practicing law complywith Rule 1:20-20.
902 A.2d PLAINTIFF-RESPONDENT, JERSEY, v. OF NEW STATE MORRISON, DEFENDANT-APPELLANT. LEWIS B. July May 2006. Argued 2006 Decided *3 (McDonald Rogers, argued appellant the cause for & Michael J. Rogers, attorneys). Lember, Prosecutor, argued cause
Steven C. First Assistant (John Barnes, County Prosecu- respondent Patrick Hunterdon tor, attorney). curiae, Lustberg, argued
Lawrence S. cause for amicus (Gibbons, Lawyers Jersey Association Criminal Defense New Deo, Dolan, Vecchione, attorneys; Griffinger Lustberg Del & Mr. brief). Kurtz, Elizabeth on opinion Justice delivered the ALBIN Court. early 27, 2002, morning September
In the hours Daniel Shore and his friend defendant Lewis B. Morrison trolled the streets of drugs. they dealer, Plainfield for found a defendant took When pooled money bought glas- their four decks of heroin —little packets Afterwards, containing powdery sine substance. de- gave day, fendant two the decks to Shore. Later that Shore of a died heroin overdose. grand jury charging
A returned an indictment defendant with and, such, distributing causing heroin Shore as with Shore’s record, drug-induced grand jury death. Based on the the trial support finding court concluded that the evidence could not a Shore, only defendant distributed the heroin to but that defendant jointly purchased possessed and Shore for their reason, personal For use. the court dismissed the distribu- charges. Appellate tion and death Division court, finding overruled the trial that the evidence raised issue, charges. agree and reinstated the now reverse. We We trial court that the evidence revealed that defendant joint purchasers possessors and Shore were of the heroin and therefore no act of distribution occurred between the two. Ac- cordingly, hold that did not we the trial court abuse its discretion *4 dismissing liability the distribution and strict for charges. death
I. A. 26, 2002, evening September On the Shore and defendant Morrison, old, twenty-four years playing both were in a band practice, between 1:00 and
together.1 After band which ended Township. a.na., they home in Raritan went to defendant’s 2:00 parents, apparently were not there with his who Defendant lived a.m., approximately 3:00 with defendant at the time. At home wheel, buy to Plainfield to defendant and Shore drove behind the addict, experi- and Shore had Defendant was a heroin heroin. the infrequent on an basis. To make with the mented money, contributing thirty they pooled their purchase, Shore Seemingly familiar the ten dollars. dollars and defendant area, man until an unknown defendant drove around Plainfield and, return, They appeared bicycle. honked the horn on a dollars, gave exchange forty man man whistled. placed of heroin. the decks in his defendant four decks Defendant and, city, gave pocket driving out of the one to Shore. While after car, they still in the Shore snorted half the deck. When home, handed a second returned to defendant’s defendant Shore bathroom and shut deck of heroin. Shore entered downstairs door, ingested presumably the remainder of the where he time, upstairs At defendant walked where he heroin. the same injected bags of defendant returned down- his two heroin. When stairs, they up “talked how both he and Shore about messed young sleep. went to were.” The two men then Sometime afternoon, injected of heroin from the defendant another dose bags purchased had back remnants of two he earlier fell asleep. p.m., went outside to feed his horses.
At about 6:00 couch, return, lying on and not On his he found Shore blue Shore, breathing. up Unable to wake defendant administered testimony presented presented statement of facts here is based on the witnesses, jury hearing. grand The State called three Detective Benedict Donaruma, Jr., Township Department, of the Raritan Police Detective James Jr., Office, Fry, County and Dr. Daksha Shah of the Hunterdon Prosecutor's Among things, County Medical Examiner's Office. other Detec- the Hunterdon describing police tive Donaruma testified to defendant's statements leading Fry events to Shore’s death. Detective testified to statements made DeMelio, Shah testified to the cause of Shore's death. him Gerald Dr. *5 friend, p.m., CPR. Sometime between 6:10 and 6:20 Gerald DeMelio, stopped by defendant’s house. As DeMelio entered the house, in a he saw defendant frantic and excited state and Shore DeMelio, lying got on help the couch. Defendant told to “You’ve get hospital____You’ve him got help get me to the him out me hospital.” to the car. We have to take him to the DeMelio asked why simply defendant he did not call but defendant was “set getting hospital.” on out into a [Shore] vehicle to take him to the passenger Defendant and DeMelio carried Shore to the rear seat jeep, keys then Shore’s but were unable to find the to the search, panicked vehicle. After a DeMelio discovered what he thought keys, defendant, were the threw them to and left for work. approximately p.m., shortly
At 6:48 defendant dialed afterwards, Township Department Raritan Police officers and paramedics responded to the scene. Patrolmen David When Gary arrived, they Carson and Brewer observed defendant at- perform Shore, tempting lying up on CPR who was face in the driveway. Brewer, Emergen- Patrolmen Carson and both trained cy Technicians, response Medical took over the CPR efforts. Carson, questioning repeatedly from Patrolman de- “illegal mentioning only drug,” nied that Shore had taken an prescription Significantly, on Shore was some medications. an off- Narcan, duty paramedic on the scene had with him a called which is administered to effects of a counter the heroin overdose. deceptive responses, Because defendant’s the Narcan was not immediately given to Shore. arrival,
Upon Township his Raritan Police Detective Benedict Donaruma, Jr., defendant, questioned again any also who “denied knowledge any type illegal narcotics.” Based on defendant’s pupils speech, constricted and slow it was obvious to Detective being Donaruma that defendant was on and not truthful. Despite misleading responses, paramedics by defendant’s time had administered the Narcan. headquarters, where he
Police officers next took defendant *6 question- rights. After a brief line of advised of his Miranda2 was Donaruma, crying. down De- ing defendant broke Detective addiction, explained that had a heroin had been dishon- fendant he answers, truth. in and wanted to tell the Defendant est his earlier trip that he and Shore took to provided a narrative of the next and the events that unfolded. Plainfield meantime, hospital, transported had to a In the Shore been pronounced Dr. Daksha Shah of the Hunter- where he was dead. County autopsy Examiner’s conducted an and don Medical Office Dr. that Shore had died of a heroin overdose. Shah determined quickly, had noted that “sometimes” believed Shore died but respond people in distress from an overdose “do revive and to” presence antidepressant medi- Narcan. Dr. Shah found the blood, potential cation in Shore’s but ruled that out as a cause of death.
B.
County
Jury
charg
A
Hunterdon
Grand
returned
indictment
ing
first-degree
liability
drug-induced
strict
for
defendant with
(count
death,
one); second-degree
in violation of N.J.S.A. 2C:35-9
2C:11-4(b)(1)
of N.J.S.A.
manslaughter,
reckless
violation
(count two);
third-degree
danger
and
distribution of a controlled
2C:35-5(a)(1)
substance,
and N.J.S.A.
N.J.S.A.
ous
in violation of
2C:35-5(b)(3) (count three). Defendant moved to dismiss the
prosecutor
present
to
indictment on the basis that
failed
liability
support
sufficient evidence to
the distribution and strict
drug-induced
charges
properly
grand
for
death
and to
instruct the
manslaughter charge.
on the reckless
charging
The trial court dismissed the counts
and
distribution
death,
liability
reasoning
no
strict
that there was
support
solely possessed
evidence to
the conclusion that defendant
(1966).
Arizona,
Miranda v.
384 U.S.
86 S.Ct.
The court also dismissed without inadequate slaughter grand in- count because the received type of that would constitute the reckless conduct structions on adequate the of an charge. a The court noted that absence such grand jury man- might have the to believe that instruction led drug-induced slaughter “legal death a alternative the was court, however, possibility of a charge.” did not foreclose the The by theory caused that death was defen- prosecution on Shore’s police regarding providing false to the Shore’s dant’s information ingestion drugs. appealed. The of State 3 that those could that it "that the counts The court noted appeared way evidence what a Grand is if the state had new beyond represented Jury joint or constructive been] heard ... on the issue of piad possession.” possession
10
c.
decision,
unpublished
Appellate
In an
the
Division reversed the
trial
of
court’s dismissal
the distribution and
death
panel recognized
concept,
counts.
The
the
articulated
State v.
233,
Lopez,
N.J.Super. 222,
(App.Div.),
359
On the other panel the affirmed the dismissal of the manslaughter reckless count on based the “insufficient instruc-
11 jury. inadequate instruc- given grand of the tions” to the Because may tions, indicted panel suggested grand have the the by promptly police to call on “a failure defendant defendant based though personnel” was emergency medical even or duty panel so.” not observed that legal no to do The “under to act liability an omission failure “criminal cannot be based on act,” also duty perform the but found absent a to omitted testimony or a other evidence “there was total absence medical delay by any or failure to act defendant was to indicate that contributing death.” cause Shore’s challenging granted petition the defendant’s for certification
We drug-induced charges. distribution and death reinstatement of the (2005). N.J. granted motion of A.2d also We Jersey Lawyers of New the Association of Criminal Defense participate as amicus curiae.
II. trial court abused its discretion must determine whether the We liability dismissing for distribution and strict charges it charges. court those The trial dismissed because death support did not evidence present concluded the State distribution defen- common to both crimes —an act of element disagreed that assessment. Appellate Division dant. sharing drugs two between “[t]he Defendant maintains simultaneously acquire joint possession for their own persons who dangerous distribution of a controlled use” does not constitute purchased claims that four decks substance. Defendant he pooled money, and al- and Shore with their heroin himself buy, drugs the moment of the though actually possessed he constructively possessed the Shore, jointly present, who was light, passing from defendant drugs. Cast in that distribution, an act of but rather Shore’s was not Shore becoming possession. actual constructive deciding adequacy Conversely, the State asserts that grand jury, given it must to the presented the evidence *9 12
benefit of all support favorable inferences in charges. perspective, Viewed from that the State insists that Shore was not any position “in to exercise intentional control or dominion over ' drugs” actually until gave Thus, defendant the heroin to him. if constructively possess Shore did not the heroin before defendant him, transferred it to defendant drugs. distributed the brief, In its amicus curiae the Association of Criminal Defense Lawyers Jersey argues prosecuting New defendant under liability the strict death statute both “exceeds ... constitutional limitations” and contradicts the “intent of the Legislature in enacting the statute.” person
We now hold that a cannot distribute a controlled dangerous person substance to a joint with whom he shares possession. light Viewed even in the State, most favorable to the totality of circumstances in compels this case the conclusion jointly defendant purchased and Shore possessed heroin. heroin, Because defendant did not distribute the the trial properly court dismissed counts one and three the indictment.
A. begin by setting We forth the standard of review of a trial court’s dismissal of counts of an indictment inadequate based on presented evidence grand jury. to the Jersey Under the New Constitution, may no compelled to stand trial for a crime presents unless the State first grand the matter jury to a ¶ and an I, indictment is returned. N.J. Const. art. grand 8. The presented must be with sufficient justify evidence to issuance of an indictment. any The absence of evidence to support charges would render the “palpably indictment defec subject tive” and to dismissal. See State Hogan, v. 144 N.J. 228-29, (1996). 676A.2d 538 court, however,
A trial should not disturb an indictment if there is establishing some evidence each element of the crime to prima make out a facie 533; ease. See id. at 676 A.2d see 487, 491, (App.Div. A.2d 61 N.J.Super. Vasky, v. also State *10 jurors 1987). Charge grand Jury instructs The Standard Grand has unless the State an indictment they “are not to return that reasonable inferences together with the which presented evidence (1) to conclude that leads [they] evidence[ ] [them] from that draw (2) it.” has committed the accused has been committed a crime 2006). short, (Apr. Jury Charge Standard Grand motion to dismiss on a reviewing grand record to that indictment, use a standard similar trial court should trial, R. 3:18- judgment acquittal of for a applicable in a motion whether, viewing the evidence court should evaluate 1. The light in the most from that evidence drawn the rational inferences reasonably State, jury could believe grand favorable to the it. See State committed and that the defendant a crime occurred curiam) (1967) 454, 459, (per A .2d 385 Reyes, v. 50 N.J. sufficiency of evidence is evaluating that standard for (explaining entirety, in its “whether, viewing evidence the State’s circumstantial, giving the benefit the State or evidence direct of the favorable testimony as well as all of all its favorable therefrom, a reason reasonably could be drawn inferences which beyond a reasonable charge guilt find of the jury could able doubt”).
B. a controlled charged with both distribution was Defendant (heroin) Shore, of N.J.S.A. in violation dangerous substance liability 2C:35-5(b)(3), 2C:35-5(a)(1) and strict and N.J.S.A. alleged heroin of the drug-induced death on basis Shore’s require crimes distribution, Both of N.J.S.A. 2C:35-9. in violation distribution statute drug The an act of distribution. proof knowingly any or person unlawful for provides that “it shall be danger ... dispense a controlled distribute or purposely ... [to] 2C:35-5(a)(1). death The N.J.S.A. substance.” ous dispens or “[a]ny ... distributes provides person who statute substances], in dangerous controlled or other classified es [heroin statute], strictly violation of distribution is liable for a death [the injection, ingestion which results from or inhalation of that 2C:35-9(a). substance.” N.J.S.A. key is whether issue here defendant distributed the heroin jointly possessed Shore or the heroin at whether both the time purchased from the street dealer. To address issue, meaning concepts we must understand the
distribution, possession,
joint possession
of a controlled dan
Act,
gerous
Comprehensive Drug
substance
under
Reform
Act,
N.J.S.A. 2C:35-1 to 2C:36-10. Under the
is
distribution
actual, constructive,
attempted
defined as “the
or
transfer from
person
dangerous
one
a controlled
another
substance” for
purposes.
other than lawful
medical
research
N.J.S.A. 2C:35-
hardly requires stating
2.
It
that the “transfer” of a controlled
*11
dangerous substance cannot occur
N.J.S.A.
under
2C:35-2 if the
already
recipient
possesses
intended
that substance.
recognizes
possession,
The law
three distinct forms of
actual, constructive,
joint.
229, 236,
Spivey,
and
State v.
179 N.J.
(2004).
person
A.2d
A
possession
object
844
512
has actual
of “an
physical
when he
or
(citing
has
manual
it.”
control of
Ibid.
State
Brown,
597,
(1979)).
587,
v.
80
404
Alternatively,
N.J.
A.2d 1111
a
person
possession
object when,
has constructive
of
although
“an
he
‘physical
control,’
lacks
or manual
permit
the circumstances
a
knowledge
presence,
reasonable inference
he has
of its
and
capacity
physical
intends and has the
to
exercise
control
during
span
237,
dominion
it
a
over
Id. at
time.”
15
‘joint
concept
possession’
prem-
is
(explaining
legal
that “[t]he
persons
upon metaphysical
in which
or more
ised
a
event
two
object”).
simultaneously possess an entire
jurisdictions
concepts, a
have
Relying on those basic
number
simultaneously
jointly
and
individuals
concluded that when “two
use, intending only to
acquire
drug
of a
for their own
possession
personal drug
simple
together,
only
it
their
crime is
share
abuse —
joint possession,
any
without
intent to distribute the
further.”
(2d Cir.1977);
Swiderski,
445,
F.2d
450
v.
548
United States
Johnson,
598,
555,
v.
413
602 N.E.2d
accord
Mass.
Commonwealth
Schultz,
(1992); People
Mich.App.
635 N.W.2d
v.
246
(2001).
Swiderski, supra,
v.
case of
States
the seminal
United
fiancée,
by govern
a
accompanied
defendant and his codefendant
informant,
City
apartment
in New York
ment
went
a studio
There,
drug supplier
a
purchase
In United States Assistant bought with a that if the defendants cocaine view “even users, sharing proof this be as ... would it between themselves ” possession “withintent to distribute.’ Ibid. sufficient to establish jury, it clear over defense instructing the court “made solely by a objections transfer that distribution could be satisfied Id. at 449. Both defendant] [his fiancée].” between [the 16 guilty by possession
defendants were found
of
with intent
Appeals
to distribute.
Ibid. The
Circuit Court of
Second
re
convictions, concluding that,
Compre
in enacting
versed the
Act,
Drug
Congress
Abuse
and Control
hensive
Prevention
did not
physical
exchange
possession
intend to make “the
between two
persons
jointly acquired
drug
who
and hold the
for their own use”
841(a).
§
an act of distribution under 21 U.S.C.A.
at
Id.
449-50.
holding
passing
drug
The Second Circuit limited its
to “the
of a
joint possessors
simultaneously
possession
acquired
between
who
at the outset
their own
Id. at
use.”4
450-51.
Second
distinguished
Branch,
Circuit
from
v.
its decision
United States
(9th Cir.1973)
curiam),
483
(per
F.2d 955
in which the Ninth
Appeals
Circuit
an act
Court
held that
of distribution under 21
841(a)
§
U.S.C.A.
occurred when “the defendant
handed
had
over
marijuana
smoking pur
small amount
to an informer for
Swiderski,
poses.”
supra,
at
548 F.2d
450. The Second Circuit
“quarrel”
did not
with the
in
in
result
Branch
that
because
case
jointly
“there was no evidence that the informer-friend had
simultaneously acquired possession
drug
at the outset.”
Swiderski,
Ibid. Unlike
“sole
rested with
Branch
drug
the defendant” and
transfer of
therefore the
to the
4
jurisdictions
holding.
A number of
have limited Swiderski to
See,
its precise
(5th
e.g.,
Cir.1994) (stating
605,
United
v.
30
States
F.3d
609
Speer,
court
"need not
on the
of the Swiderski doctrine" because it
validity
was
pass
at least
some of the cocaine was intended
...
"undisputed
subsequent
transaction”),
[a
distributed to
at or
who was not
near the scene of
ly
person]
(1994),
denied,
cert.
U.S. 1028,
603,
513
115 S.Ct.
17 not,” informer, an act of distribu- a “friend or constituted whether tion. Ibid. applied principle” in Appellate Division “the Swiderski
Our
drugs by-
sharing
that
of
Lopez, supra,
v.
and held
“the
State
joint
...
not constitute ‘intent to
possession
in
does
individuals
meaning
and
of N.J.S.A. 2C:35-5
N.J.S.A.
distribute’ within
case,
228, 236,
A.2d
In that
N.J.Super. at
819
486.
2C:35-7.” 359
by Lopez
executing
apartment
an
shared
in
a warrant
search
discovered,
all,
marijuana,
Garcia,
grams
in
7.37
of
police
229,
cocaine,
drug paraphernalia.
Id. at
819
grams
0.41
of
hand-
particular,
police found remnants of three
A.2d 486. In
room,
grams
marijuana
living
in
a few
of
cigarettes
rolled
bedroom,
marijuana cigarette
Lopez’s
in
marijuana
a
loose
Lopez
Ibid.
and Garcia were
cocaine in the kitchen.
and the
crimes, including
charged
of a number of
with and convicted
to distribute cocaine and
possession
possession
with intent
226-27,
marijuana.
Id. at
The
noted
joint
on
‘possession’
was based
culpability as to the element
marijuana
and the cocaine.”
possession
both defendants
Nevertheless,
233,
prosecutor argued
A.2d 486.
Id.
“
marijuana by
sharing of this
the two
‘the
summation
”
distribute.’
Id. at
possession with the intent to
them is
omitted).
panel
prosecutor’s
found the
(emphasis
The
A.2d 486
remarks,
persons in
occurs when two
suggesting
distribution
other,
drugs
joint
drugs
those same
with each
possession of
share
panel
Id. at
which two more persons possess joint A of this control. corollary proposition of it outside the possessors’ any piece object Having something cannot one already possesses. is one acquire not have the intended does the intent to distribute recipient presumes cannot as a matter of two or more defendants Therefore, law, of it. jointly drugs Stated differently, to each other they possess. intend to distribute or either N.J.S.A. 2C:35-5 N.J.S.A. of “intent to distribute” under the element sharing of on the basis of the between cannot be established 2C:35-7 among joint possessors. [Id. 486.] at 233-34, 819A.2d *14 prosecutor’s princi-
Because the statement conflicted those ples clearly result, capable producing unjust of law and was Appellate possession the Division reversed the with intent 233-36, distribute convictions. Id. at 819A.2d 486. accept precept Lopez the self-evident in
We
that “one
acquire something
already
cannot
possesses”
one
and thus two or
persons
drugs they jointly
more
cannot “distribute to each other
possess.” Id. at
accept
We also note that in Comprehensive New Act, Drug Legislature Reform findings the made and declarations light that shed some on how distinctions should be made concern ing culpability. Legislature N.J.S.A. 20:35-1.1. The stated that policy “it is distinguish the of this State to drug between offenders offense, based on the considering principally seriousness the the nature, quantity purity involved, and of the controlled substance and the drug role of the actor in the overall distribution network.” 2C:35-1.1(c). passing Act, N.J.S.A. In Legislature the the sentencing guidelines deemed the under the old laws inade quate “identifying] the most serious offenders and offenses and guarding] against sentencing disparity.” [in] N.J.S.A. 2C:35- 1.1(d). consequences finding The signifi of a of distribution are cantly greater than possession. that of Whereas the maximum term imprisonment distributing for per heroin that causes a 2C:35-9(a) son’s twenty years, death is N.J.S.A. 2C:43-6(a)(1), the maximum term of heroin is 2C:35-10(a)(1) years, 2C:43-6(a)(3). five N.J.S.A. Legis expected culpability lature the criminal parties to bear some mindful, well, proportion conduct. as that crimi to their We are Hodde, strictly construed. State v. 181 N.J. nal statutes are (2004). 375, 379, 858 A.2d
c.
apply
concepts
principles
now
the
discussed
We
any
determining
there are
facts
the facts of this case.
whether
charging
distributing
support
indictment
defendant with
Shore,
engage in a
two decks of heroin to
we must
fact-sensitive
analysis
totality
Among
on the
of the circumstances.
based
relationship
are whether
of the
factors to be considered
parties
personal,
the statements and conduct of
is commercial
other,
parties,
degree of control exercised
one over the
parties
purchased
drugs together,
whether the
traveled
involved,
party
quantity
and whether one
had sole
*15
dangerous
any signifi
possession of the controlled
substance for
rski,
length
supra,
played in a band
and
early morning
September
in
practice,
the
hours of
After band
2002, they
and from there to Plain-
traveled to defendant’s home
addiction,
in
had a heroin
and
field
search of heroin. Defendant
They
drug
past.
in the
drove
Shore had dabbled with the
thirty
money,
contributing
dollars
together
pooled
and
their
Shore
specu-
Despite
Appellate
ten dollars.
the
Division’s
and defendant
interpreted
proceeds
of
“could be
as
lation that
the division
finding
drug
making
compensation for defendant
the
seller and
remotely
purchase,” nothing
grand
in
record even
the
the
suggests
relationship
and
was commercial
that defendant
Shore’s
provided
transporta-
Considering
in
that defendant
the
nature.
monetary
place
evening, the difference
their
tion and the
for the
factor,
overriding
transforming
a case
contributions is not
joint possession into
Here were two friends
simple
distribution.
They
misguided
found the street
on a
and ill-fated venture.
only
actually
together,
practical
as a
matter
one could
dealer
but
purchase for the two of them.
conduct the
reality,
nothing
designee,
than
defendant was
more
Shore’s
Typically,
persons jointly
making
buy
when two
for both.
drugs,
gives
money
drugs
for the
will
purchase
the one who
necessarily
drugs
possession
he hands a
have the
his
before
companion.
accept
strained
portion over to his
To
the State’s
act of
view would lead to the absurd result that an
distribution
solely
fortuity
depended
on the
between defendant
Shore
drugs
first took in hand the
from the dealer. Both defendant
who
purpose,
and Shore acted for a common
and both were simulta
neously
purchase.
present
of the
had the
the time
Shore
capacity
to take control of his share of the heroin. The
intent
clearly implies
bought
evidence
that when defendant
the four
is,
joint
drugs
possession
both were in
of the
defen
decks
—that
possession
dant had actual
Shore constructive
236-37,
Spivey, supra,
the heroin. See
It bears his grand jury principles tor chose not to instruct on joint possession, constructive and but on the elements of instructions, grand jury distribution. was Without those blind *16 options grand jury to the available to it. Had the been informed joint may possession, about constructive and it well have come to the same conclusion that this Court and the trial court have reached.5 challenge Defendant did not in his to this Court the instructions petition given grand jury. judgment to the decline We therefore on whether pass
those instructions were adequate.
III.
summarize,
agree
To
we
with the trial
that
court
there is
in
grand jury
support
insufficient evidence
the
record to
count one
charging
liability
drug-induced
defendant with strict
for Shore’s
death
charging
and count three
distribution of a controlled dan-
gerous substance. We
find that
court
therefore
the trial
did not
dismissing
abuse its discretion in
those counts of the indictment.
judgment
Appellate
We reverse the
of the
Division and remand to
entry
for
opinion.
the trial court
of an
this
order consistent with
RIVERA-SOTO, dissenting.
Justice
appeal,
majority
the
this
the
of an indict
sustains
dismissal
first-degree
liability
charging
drug-
ment
defendant with
strict
for
death,
violation of N.J.S.A.
2C:35-9;
in
second-degree
induced
2C:11-4(b);
manslaughter,
violation of N.J.S.A.
reckless
and
third-degree
substance,
dangerous
distribution of
a controlled
2C:35-5(a)(1)
violation of N.J.S.A.
2C:35-5(b)(3),
and N.J.S.A.
charges
arose as
purchase
which
a result
defendant’s
and
distribution of heroin to his friend Daniel Shore
Shore’s
and
death
resulting
ingestion
According
his
from
of that heroin.
to the
majority,
grand jury]
only
evidence [before
“the
the
revealed
joint purchasers
possessors
Shore were
and
heroin and therefore no act of distribution
between
occurred
the
Ante,
(2006).
188 N.J. at
two.”
Reversing trial court’s dismissal of the indictment in this case, Appellate Division noted recognize this both the Constitution common law of State independence grand jury. this For reason courts are reluctant to intervene in the indictment It is indictment
process. well-established should be disturbed on the only ground, it clearest and when is deficient plainest manifestly palpably grand jury defective. The of evidence need quantity quality presented *17 22 great face, If the is clear on its there indictment. indictment
not be uphold Moreover, to the elements of each offense. the be some evidence as need largely or even hearsay testimony. presented may wholly evidence omitted).] [(citations and internal marks quotation Appellate concepts, the identified the on core Division Based those by the for as “whether the evidence received issue resolution probable on grand jury finding for a cause the was sufficient necessary [first-degree liability to the strict element distribution [third-degree of a con- death] distribution dangerous counts of substance] trolled the indictment.” analysis directly Appellate the to a That led Division discussion by majority: principally two relied on the United of the cases (2nd Swiderski, Cir.1977), 445 v. v. 548 F.2d and State States 222, granted Lopez, N.J.Super. (App.Div.), 359 A.2d 486 certif. nom., Garcia, 326, appeal v. 177 N.J. 832 A.2d sub State dismissed, (2003). panel Although the 178 N.J. 840 A.2d is, holdings Lopez, the endorsed both Swiderski and joint possession of controlled substances is inconsistent with the distribute, properly Appellate the Division focused on a intent substantive, conclusive, ultimately distinction not addressed Noting majority: procedural posture of this the the case. Lopez appellate both of convic Swiderski and involved the review distinguishing after ease it tions trial this because involved indictment, pretrial panel explained of the the that it dismissal Lopez drugs, sharing to read to hold that the the “decline[d] pooling money presence the of a mere scene joint possession transaction as a of law.” Re constitutes matter sanctity grand jury process, specting the constitutional Appellate primarily Division concluded that issue is factual “[t]he properly in nature and reserved for the factfinder.” Smderski’s, Lopez’s, entirely majority’s I am in accord with panel’s legal reasoning joint possession of con- and the is trolled substances inconsistent with the intent distribute statutorily required for crimes for which defendant stands However, part charged. company majority’s I conclusion because, correctly great Appellate acknowledged, as Division is constitutionally grand jury deference due our mandated *18 process. protective Unless guidelines applied the basic to that violated, process are they and there is no intimation here that any way, process were violated in adversary started proceed. must differently, indictment be allowed to Viewed issue of whether defendant’s his victim’s joint heroin that claimed that victim’s life was a matter is trial, defense at not charges was an element of the returned against Therefore, defendant. resolution this issue should prematurely not be addressed via a motion dismiss the indict- ment, ripe at the but time the determination of defenses: trial.
I respectfully dissent. PORITZ, For reversal and remandment —Chief Justice LONG, LaVECCHIA, ZAZZALI, Justices ALBIN and WALLACE —6.
For RIVERA-SOTO —1. affirmance —Justice
Argued April July 2006 Decided 2006.