State v. RoachState v. Roach
An indictment returned by a Monmouth County Grand Jury charged defendant with two counts of aggravatеd sexual assault (
On this appeal, defendant advances the following arguments in support of his contentions that his conviction should be reversed and the distribution count of the indictment should be dismissed or, alternatively, his sentence should be modified or the matter remanded for resentencing with directions to afford defendant the presumption of non-incarceration:
I. THE DEFENDANT‘S MOTION FOR A DISMISSAL OF COUNT SIX OF THE INDICTMENT AT THE CONCLUSION OF THE STATE‘S PROOF WAS ERRONEOUSLY DENIED.
II. THE DEFENDANT‘S FIRST TRIAL WAS IMPROPERLY TERMINATED AND THE SECOND TRIAL WAS THEREFORE A DEPRIVATION OF THE DEFENDANT‘S FIFTH AMENDMENT RIGHT NOT TO BE SUBJECTED TO MULTIPLE PROSECUTIONS.
III. THE SENTENCE IMPOSED BELOW WAS MANIFESTLY UNFAIR: IT WAS AN ABUSE OF DISCRETION TO IMPOSE A CUSTODIAL TERM.
The State‘s evidence in the first trial pertaining to the аlleged unlawful distribution of a controlled dangerous substance, disclosed that defendant, while a counsellor at the Monmouth County JINS2 Shelter, had participated in the use of marijuana and cocaine with one J.B., a juvenile resident of the shelter. J.B. testified that he and defendant had smoked a marijuana cigarette together by passing it back and forth between them, but that he, J.B., had supplied the marijuana. In a written statement given to the prosecutor‘s investigator,
In denying defendant‘s motion, the trial judge concluded that the undisputed evidence as to thе passing back and forth of a marijuana cigarette between defendant and J.B. could constitute a transfer within the meaning of the statute prohibiting the distribution of marijuana. He reasoned:
Let‘s take this in two steps. First of all, let it be said that distributе as that statute — as that word is defined means, to deliver a controlled dangerous substance; and deliver has a definition which means, an actual or attempted transfer from one person to another of a controlled dаngerous substance. And there is no question in this Court‘s mind that there need not be a sale. There need not be a money transaction. There may not be a giving over and forever surrendering to have a delivery under that statute. Delivery means attempted to transfer or the actual transfer from one person to another of C.D.S. It certainly in this Court‘s opinion covers the situation where a marijuana cigarette is passed from person A to person B to person D for instance. D is the defendant and then back to A, D the defendant transfers it back to A that is a delivery of a controlled dangerous substance and it matters not in this Court‘s opinion that that item was in the process of being smoked all around in a рeace pipe type of setting. That is a transfer and that is a delivery. As I understand the definition that constitutes a distribution of controlled dangerous substance.
Defendant argues that this is a strained and contrived interpretation of the concept of distribution as used in the statute. Assertedly, it was not within the contemplation of the Legislature “to permit the conviction of individuals for the distribution of marijuana when the circumstances are such that individuals merely passed a small quantity of marijuana back and forth between themselves in the course of ingesting it.” We disagree.
The Legislature decreed that “it shall be unlawful for any person knowingly or intentionally [t]o ... distribute ... a
As we observed in State v. Sainz, 210 N.J. Super. 17, 25 (App.Div. 1986), aff‘d, 107 N.J. 283 (1987), distribution under the Act is present “whether the intent is merely to share cocaine casually with a friend or tо control a widespread network of illicit distribution and sale.” Ibid. In Heitzman, we also noted that distribution does not require a commercial sale but can take place in the sharing of marijuana with social guests. 209 N.J. Super. at 620-621. We perceive no valid distinсtion between the passing of an unlighted or lighted marijuana cigarette
Although evidence of such conduct alone was sufficient to warrant the denial of defendant‘s motion for acquittal, the additional testimony pertaining to defendant‘s oral admission and the written statement originally given by J.B. to the investigator provided further support for the trial judgе‘s conclusion that a jury issue had been presented. Viewing the State‘s evidence in its entirety and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences reasonably to be drawn therefrоm, it was properly determined that a reasonable jury could find defendant guilty of distribution of a controlled dangerous substance to J.B. beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 458-459 (1967).
We also discern no error in the denial of defendant‘s motion to dismiss the indictment because of the claimed violation of his Fifth Amendment right arising by reason of the retrial. As the first trial assertedly had been improperly terminated, the second trial thus would unlawfully subject defendant to multiple prosecutions for the same offenses. Our review of the record satisfies us that defendant‘s first trial was not improperly terminated. The mistrial due to the deadlocked jury was declared by the trial judge only after being repeatedly
The Code permits the termination of a trial because of the “failure of the jury to agree upon a verdict after a reasоnable time for deliberation has been allowed.”
Defendant argues, although without аny factual foundation, that the approximate two and one-half hours of jury consideration could hardly be considered a reasonable time for its deliberations. This argument lacks persuasiveness in view of the opportunity afforded the jury to continue deliberations and its repeated response of a hopeless deadlock. Under such circumstances, the trial judge cannot be faulted for concluding that a mistrial was appropriate due to the jury‘s inability to agree
Finally, we find no merit in defendant‘s contention that the trial court abused its discretion in imposing a custodial sentence. Defendant‘s assertion that the presumption against incarceration afforded to first offenders by
We affirm the conviction of defendant but modify his sentence as herein provided. The matter is remanded to the Superior Court, Law Division, Monmouth County, for the necessary correction of the judgment of conviction.