*1 PLAINTIFF-RESPONDENT, JERSEY, STATE OF NEW RUIZ, DEFENDANT-APPELLANT. EDDIE PLAINTIFF-APPELLANT, JERSEY, NEW STATE OF WILLIAMS, DEFENDANT-RESPONDENT. YVONNE September 24, 1975. Argued June 1974 Decided *2 Mr. David A. Arrajj, Defender, Assistant Public Deputy the cause for Ruiz argued defendant-appellant Stanley (Mr. Ness, Defender, Mr. O. Van Public on the attorney; Arrajj, brief). Faloni,
Mr. David A. designated counsel, argued the cause for Williams O. Van Stanley defendant-respondent (Mr. Faloni, Ness, Mr. Defender, Public on attorney; the brief). Mr. Richard W. Berg, Deputy Attorney General, argued cause for plaintiff-appellant plaintiff-respondent, William F. Hyland, New Jersey Attorney (Mr. Mr. General of New Steven Leonard attorney; Jersey, elite Mr. Rubenfeld, Sir Robert A. Deputy Attorneys General, on the briefs).
The was opinion of the Court delivered common present cases J. These consolidated Cliefokd, law, governed resolution questions Davis, 68 N. J. 69 (1975), State v. enunciated in principles is whether main issue in each day. decided this case to distribute with intent convictions for respective thereof heroin into the convictions merged to be convictions so possession-with-intent as require the vacated.
I Ruiz named in three indictments. separate Defendant was are concerned that on with which we charged one Ruiz did unlawfully possess June heroin, con- 2) distribute distribute 1) (Count (Count N. J. A. 24:21-19 trary (a) (1).
At Patrolman-Detective Botsko testified that on trial an for the 13, 1972 he was undercover acting agent June Narcotics of the Morris Prosecutor’s Office. Squad County In that capacity approached group he and informer area on the other of males around in store side of standing South Dover. halfway Essex Street He was met across shouted, it, street by the defendant who as Botsko put him and “he had the best on the street and another dope from New just an ounce York.” guy copped [purchased] *3 unsuccessful, After some but as to hastily begun, dickering eyed the revolver carried officer and initially what heroin, with was worth suspicion by bags in group The a would cost. money pound Botsko asked how much bag handed that The detective then $10. defendant replied an and to Ruiz, left proceeded amount who scene one street, a about returning location on nearby undisclosed white-powdered a packet containing minute later with foil an four additional heroin. Ruiz offered Botsko point At that testi- refused. for the but the officer Defendant bags pistol to the trial never Botsko prior fied that he had seen any June 13 or other denied him heroin on any selling Division, 127 Appellate In the convictions the affirming date. alia, declared, that the inter Super. and the narcotics with intent acts of distribute offenses sepa- thereof were distinct actual distribution (a), B. 2:2-1 is as of right, The case here rately punishable. maintained that the possession of a dissent which reason of heroin bag packet merged with intent to sell the single distribution of the bag. same II The in relatively fact in case is pattern the Williams distinct in Ruiz. was accused in a six- Williams of a controlled dangerous count of possession indictment and with unlaw intent to distribute substance (heroin) with ful May, on three distinct dates N. J. S. 24:21-19 (a) (1). contravention of subject concedes that the heroin bag of heroin distribution on each is the same packet occasion on which for possession conviction was secured sought distribute on the same date. Once again — undercover time from member of narcotics team — the Monmouth Prosecutor’s Office was the County prin for the testified cipal witness State. Investigator McLemore had her he been introduced to the defendant at apartment Ross, in by one who in turn to Williams that the disclosed wanted to some return for vestigator purchase drugs. bill, five-dollar defendant McLemore white passed glassine later determined contain heroin. the next two bag During first, within which occurred a week of the similar meetings, “buys” Yvonne Williams as the transpired. testified witness in her behalf and denied McLemore ever seen having the courtroom prior to While she admitted know proceedings. Ross ing May of she insisted she had not seen during him on the days in question. all found the accused on six counts. De- jury guilty
fendant on was sentenced 1973 to an in- January determinate in the Correctional period Institution count, Women at Clinton on the sentences run con- *4 with a maximum currently ten-year imposed. Upon appeal, the defendant that since the offense argued of possession a controlled with intent of substance distribute dangerous in a count as a lesser included offense merged heroin, the same of the lesser conviction on involving bag Defendant averred (1) should be overturned. also charges transaction, actually that the six offenses constituted but one count, conviction on and single thus mandating (2) with imposed ten-year the indeterminate sentences While the trial court’s maximum were excessive. affirming we for reasons which last points determination on the two Division, and hereby adopt, Appellate find sufficient first conten- with defendant’s agreed Super. with intent convictions for possession tion vacated the dissent, which and illuminating distribute. his perceptive Court, as of appeal right furnishes the basis for the af- convictions should concluded that Judge Lynch firmed.
Ill v. of State here, Inasmuch companion as as in the case Davis, of heroin supra, possession there was no proof sold, both argued other than that which was defendants that the convictions for with intent to distribute possession necessarily and distribution one must possess because merge make distri- or without order to drug (with intent) bution thereof. demonstrably are with here we again dealing
But Davis, supra, criminal offenses. State distinguishable J.N. at 81-83 between possession differences points up and distribution trafficking in terms of the stage and the time each offense. represents span characterizing So here we note possession charge distribute in N. J. S. 24:21-19 (a) (1) violation of seeks to condemn the certain drug transportation placement commerce, substances in stream of while indict illegal ment for distribution looks final step drug trafficking to the — is, too, transfer to else. There absence same someone of coincidence of in law between the two proof offenses exists respect simple possession distribution.
Dor does the “mere and shadowy” ex fleeting Booker, ception 86 N. Div. Super. (App. here 1965), more than in Davis. Both Ruiz and apply *5 relative, did Williams business strangers- Williams sold - the undercover on three occasions. agent drugs Clearly Ruiz neither nor possession Williams obtained 'of the heroin State, the behest of the v. Laughter See agent. Miss., 241 2d 641 So. told officer he had (1970). Ruiz “best dope” Dover and had “just an ounce copped York,” New and thereafter tried of to barter four packets heroin for the detective’s weapon. On of three oc- Williams, casions without question any forewarning, sup- plied Detective MeLemore with a white glassine bag heroin which she had either on her inor her person apart- ment. With to both Ruiz and respect Williams the period possession the intention harboring distribute was substantial and antedated each sale. significantly specific The evidence in each case convictions. supported separate
IY The of the Division judgment Appellate affirming Ruiz convictions of is affirmed. Division judgment Appellate the con- vacating
victions of Williams heroin with intent hereby distribute it is reversed and the convictions re- instated. Davis, These cases and State dissenting.
Pashman, Jester, N. J. 68 N. J. 87 (1975) and decided raise troublesome issues today, also con- defendants cerning propriety punishing convicting sub- for both distribution of controlled illegal dangerous substances with stances of such illegal possession to distribute where offenses arise out of single both a defendant be con- may sale. concludes that majority victed and for both offenses. I punished disagree. Ruiz heroin
Eddie made one sale of undercover police sale, Based on that he was convicted of both agent. illegal of a substance1 and of dangerous controlled distribute, illegally such substance with intent possessing both in violation of A. 24:21-19 (1). Yvonne (a) *6 made of heroin Williams three sales to undercover police course agent over the of week. She was on counts convicted of distribution and possession with intent to distribute for sale, a total of six offenses.2 neither case did the State introduce any evidence of the possession by defendant of any narcotics other than those sold to the undercover actually agent.
N. J. S. A. 24:21-19 provides, in pertinent part: Except act, a- as authorized shall be unlawful for person: (1) manufacture, distribute, dispense, possess To or or to or have manufacture, distribute, dispense, under his control with intent dangerous substance; a controlled $25,000.00, or prisonment b. (1) A substance classified in Any is guilty person for not more than 12 both; of a who violates subsection a. with high misdemeanor and shall * [*] Schedules * [*] years, s- »(cid:127) I or a fine of not more than II which is a narcotic be respect punished to: im- statute makes both distribution of heroin and posses sion of heroin with intent to distribute illegal. offenses are distinct in that each includes essential in elements not State, Jackson cluded in the 522 P. other. 2d dangerous 1Heroin is classified aas I schedule controlled substance. (d) (11). N. J. A. 24:21-5 Appellate 2In Division defendant Williams the also raised the separately punished she could be convicted and issue whether cross-appealed distribution for each of sales. She has not the opinion portion rejecting argument. lower court the See Frank, (1951). Although Frank v. 7 N. 234-35 the Court presumably question Kligman anyway, could man, consider that v. Laut (1969), do it need not so. I do not under majority opinion issue, stand the to have decided the either ex pressly or sub silentio. 1055, 95 S. Ct. cert. den. 419 U. S. 1974); Ct. Sup. (Wyo. cognate provision Ed. 2d 652 L. (1974) (construing Never statute). controlled substances dangerous of Wyoming Possession with are related. theless, closely two offenses than distribute, penalty which carries greater (a) specifically N. J. S. 24:21-20 (1), simple possession, of traffickers in narcotics facilitate prosecution designed same class It precisely and other reaches dangerous drugs. gives prose offense of persons to bear against cutor of the State power seeking bring trade alternative involved persons illegal drug itself cannot for conviction where distribution ground proven. can
It often facts which the State happens prove a conviction for support suffice to
distribute but would not a conviction for distri support Reed, 34 N. J. 554 bution, but cf. *7 in a the State find itself situation rarely does where a facts it can suffice to conviction for distribu prove support tion but would not a connection for support possession with intent to distribute. practice, proofs establish almost also invariably distribution establish illegal Thus, the seller of the distributed.3 possession by drugs illegal possession. 3“Possession” includes both actual and constructive 1968), Reyes, Super. 506, (App. Div. certif. State v. 98 512 Super. 450, Brown, (1968); N. denied N. J. 582 State v. 67 51 cf. agent 1961). possession through (App. an as Div. It includes 454-55 possession by physical the defendant himself. United States well Hernandez, ; (2 1961) States F. 2d 90 Cir. United v. 290 Figueroa, Supp. 1971). (S. con F. D. Y. Courts have 645 N. Hernandez, concept very broadly. Thus, in United States strued the Appeals supra, S. Court of declared: U. employee agent dominates, Physical custody by or whom an one control, such actions one can is sufficient to constitute whose * * * Moreover, person principal. possession a constructive having physical sufficiently persons cus- who is with the associated tody difficulty, drug able, cause the to be so that he is without to produced jury found a to have for a customer can also be possession. drug, therefore and control over dominion 90; omitted]. F. 2d citations [290 at the practical a be consequence defendant permitting convicted and for punished distribution and possession both of the distributed is that in the majority overwhelming cases, conviction for ex illegal automatically poses the defendant not for distribution punishment also to for punishment but possession intent to dis tribute incident to the distribution. The issue be principal fore the Court in these cases is whether constitutional prin ciples law statutory such permit defendants be ex to this posed double type of punishment. issue in N. J. majority by finding resolves S. a intent
24:21-19 that where (a) (1) legislative proofs sup for distribution conviction and also for port possession distribution, to distribute incident to the may defendant be convicted and for punished both offenses. Davis, State v. 68 N. J. at supra, 82-83. Such intent cannot, course, be inferred from the of the language statute itself. While in N. prohibition J. S. A. 24: 21-19 of both (a)(1) distribution and with in tent to distribute indicate a might legislative be persons convicted and punished both wher offenses transaction, ever even possible, when arise they out of the same Gore v. States, United U. S. c f. 1405 (1958), Ct. L. Ed. 2d well might equally
indicate intention legislative give prosecutors selection of variant with which legal theories to attack traffickers that, so as drugs insofar as insure will possible, every case succumb to least one theory regardless can theory that proven case, the given same pun States, result, ishment will Gore v. United supra, at 393- cf. *8 Except in the handful of cases demonstrate in the seller can legally acquired possession, that he has such standard means that everyone power almost with the has consummate sale sufficient guilty illegal possession. By “dominion and control” to be of ex- cluding merely “fleeting situations where shadowy,” Davis, supra, 77-80, majority State v. J. 68 N. at elimi- irregular nates the freakish and case.
63
1410-1412
1284-1286,
The Controlled was Dangerous L. c. 1970 as 226. It modeled on the Uni- loosely was form Controlled Substances Act year by promulgated National Conference Commissioners on Uniform is, N. J. S. A. 24:21-19 minor Laws. (a) (1) except here, not identical changes language essentially pertinent to Uniform Controlled Substances Act The of- 401(a). § ficial comments to the uniform reveal do not whether act the draftsmen intended to authorize conviction and punish- ment for both “delivery” “possession deliver” in the situation. Cases statutes present construing based on uniform jurisdictions other section of the Thornton, issue, act have divided on the compare State C. 513, N. 196 S. E. 2d Ct. (Sup. 1973) (refusing Stewart, merge convictions); 46 Mich. People App. 282, 207 W. N. 2d 907 Jackson v. (1973) (same) State, supra, P. 2d 1359-1360 convic- (merging tions), and found little in the guidance history have official commentary the uniform act. 24:21-19(a) (1), adopting Legislature
had before mass of materials on the great problem abuse; recommendatidlns Mes governor, Special sage by Governor Cahill to the Legislature, Drug Abuse— Problem Decade! (April 1970), the various re of the Narcotic Commission ports Study (established by Joint Res. No. 15 (1962)) its final Nar including report, Oomm’n, cotic Final Study Report comments attorney the United States for the district of New Jersey, Lacey, Recommendations to the 1970 Session the New *9 Which Be
Jersey Concerning Legislation Legislature Might Enacted Curl the and to Power Organized Influence of Crime New a Jersey variety reports and (1970); pre- e. J. pared various state and federal N. agencies, g., State Law Assistance Program Agency, Enforcement Staff Book Desk on Report: Drug addition, Abuse (1969). were before joint bearings held and relevant Senate testimony committees at which Assembly expert considerable on and legislative strategies abuse traffic against drug was presented. reveals
A legislative history review of this voluminous thoroughly for serious and docu- very concern strong in narcotic drugs mented traffic problem general than mere intent to traffickers more users severely punish intent realized establishment a maximum (an penalty $5,000 of five years imprisonment fine for simple posses- N. A. 24:21-20 sion, J. S. and of a maximum (a) (1), penalty $25,000 of 12 years imprisonment fine or possession distribute, N. S. A. 24:21- but it intention, reveals 19(b)(1)), expressed nowhere implied, authorize conviction and for both punishment distribution and with intent to distribute arising out of the same sale as in the present cases. legislative intent which the majority to infer statute purport and its legislative is not to history be found those sources all. at The majority have simply imputed the Legisla- ture own their notions as to what policy Legislature should adopted. have confronted, as
We are thus not majority appear with the task of suggest, determining whether clear and can intent legislative reconciled consti- unequivocal tutional legislative limitations but with upon power, task of between choosing alternative am- interpretations of statutory biguous language where the Legislature has ex- pressed no all. In pertinent such circumstances, it is not the proper function judiciary make its own and baldly them to silent policy judgments attribute Where the has Legislature. Legislature not unequivocally courts are spoken, bound to look to the general principles *10 upon our criminal law for system is founded their guidance.4 the course in this situation to my opinion, is proper did not
presume that the intend the Legislature language N. J. S. A. 24:21-19 (1) to be used (a) automatically to double the sentence could that be a imposed upon person convicted of distribution of a controlled sub dangerous stance, instead intended but to an alterna give prosecutors tive for conviction of ground in persons engaged trafficking proper 4If imputing it were for us enter to into in exercise logic Legislature, Dangerous to tent of the Controlled Sub stances Act would seem to me to make it a more reasonable reach precisely opposite majority. result to that reached It would Legislature possession seem to that the has treated me with intent distribute, 19(a) (1), differently N. J. from and more 24:21 - harshly simple possession, (a) (1), than N. J. S. A. 24:21-20 because possession preparatory step with intent a distribute is toward the more serious scholarly offense of distribution. A number of articles argued peculiarly appropriate have this is case in which is impute merge. Kirchheimer, to Act, an intent the convictions “The Offense, Jeopardy,” and Double L. J. 58 Yale 518-22 (1948) ; Comment, (1965). 75 L. J. Yale 318-21 This view was adopted by the draftsmen the Model Penal Code: Section 1.07. Method of Prosecution When Conduct Constitutes Than More One Offense. (1) Multiple Prosecution Limitation on Convic- for Offenses: may tions. When the same conduct aof defendant establish the offense, may prose- commission of more than one the defendant be may not, however, cuted for each such offense. be convicted He of more than one offense if: (b) conspiracy one offense consists of a or other form of preparation other; to commit the [ALI, (1) (b) (Proposed Model Penal Code 1.07 § Official Draft (1962)]. language incorporated proposed The same has also been into the Jersey Code, Jersey New mission, Penal 1 New Criminal Laio Revision Com Jersey 2C:1-7(a) (2) The New Penal § Code 7at pending Legislature now Assembly which is before the Bill No. 3282.
66 itself cannot where for some reason distribution narcotics, in is convicted of dis- where a defendant Hence proven. be for conviction specifically drugs, tribution of identified same drugs of those distribute must deemed permitted cannot also be to stand but have into the conviction for distribution. merged requires principles two important
The application by the recognized first is the principle, construction. Davis, J. at 76-78 that per- 68 N. supra, v. State majority, This the same offense. be twice punished not may son law common roots both deep a principle Jamison, 64 State federal constitutions. See state Hill, 110 44 N. Super. (1974); Pearce, U. S. North Carolina v. Div. 1957); (App. ; Ex L. 2072, 23 Ed. 2d 717-18, (1969) 89 S. Ct. But Ed. 872 parte 163, 173, Wall. L. Lange, (1874). *11 323, 1757, 90 26 326, see Price v. 398 U. S. Ct. Georgia, S. Johnston, 342, v. Holiday 300 313 U. S. L. Ed. 2d (1970); 85 1392 349, 1015, generally Ct. L. Ed. (1941). 61 S. See Yale L. J. Note, 65 339 need here (1956). We not consider in whether aspect this its constitutional would bar principle statutory the en Legislature authorizing by specific actment conviction and both punishment for in of distribute the factual context cases. In the absence of such present the clear any legisla tive should its enactment we be the in guided by principle broadest and most humane form. of The proper application this was in principle declared the case of v. early State N. Cooper, 13 L. 361, J. 372 : the 1833) Ct. “If (Sup. whole offense, in eye the of reason and is one philosophy * * *, we ought presume not that the meant legislature States, Accord Gore it as two.” v. United to punish supra, 78 393-97, U. at (Warren, 357 S. at S. Ct. 1280 C. J. and in Edmond v. Douglas, dissenting separate opinions); cf. State, supra.
67
familiar
penal
The second is the
that
statutes
principle
State v. Fair
the
are to be construed
State.
strictly against
Center, Inc.,
Lawn
Service
20 N. J.
472 (1956); State
468,
Cannizzaro,
N. J. L.
384
383,
1945);
& A.
(E.
Woodruff, L. 3 Suther
1902);
Ct.
(Sup.
land,
Construction,
Statutory
ed.
59.03 at 6-8 (Sands
§
1974).
this
to the
proper application of
principle
pres
ent situation is nowhere
by
better
than
Justice
explained
States,
Bell v.
82-84,
Frankfurter
in
United
349 U.
S. Ct.
L. Ed. 905
:
(1955)
more than one woman in violation of Mann
fenders
pathy
furnishes.
in technical
desires to
clared
resolve doubts
position
*12
punishment
will be resolved
language used in criminal statutes should not be read with the sav-
did
expressing
the
tive
leaves to the
ing grace
conduct.
embark on crime. It
one be
conflicting
offenses,
make
It
Congress
the statute in its
Bar,
it do so? It has not
crime
punishment
is not to
not
with
will,
dogmatic.
against
of a harsher
could
when we have no more to
It
out of
make
constructions. About
it
stick in a
could no doubt make the
for a
may fairly
language,
—
common sense
Judiciary
persuasively
he
fixing
ambiguity
purpose
the law
the unit
for each woman
when
against
federal
When
denied
the enforcement
entirety
merely
sentimental
its
faggot
are to be read. Nor does
it
punishment.
the task of
Congress
offense
carefully
that
done
turning
punishment.
has
should
said
Congress
means
prosecution and,
a:
argumentative skill,
so
to be
single
not
clearly
be
[*]
n
in words
consideration,
a
has
which other
so
will,
read the
of a
any
unreasonably
resolved
single
imputing
the
This in no wise
one
simultaneous
transported.
the will it
criminal unit. When
go
Nor is
presupposition
proscribing
controlling
that
if
penal
on than the
aspect
transaction into
in
Congress
without
in favor of
penal
is,
the
guiding light
more
code
Act
enactments,
or for want of
has
reach either of
Congress
provisions
as was
gloss.
transportation
code before
evil or antisocial
liable to cumula-
defining
ambiguity,
assume
against
does not fix the
particularly,
no
of our law to
present
implies
question
problem
lenity.
difficulty
shown
an unde-
Congress
not cast
multiple
that of-
what
afforded
defining
doubt
sym-
they
And
case
can
im-
is:
of
in
it
Accord,
States,
Ladner v.
United
358 U. S.
169,
79 S. Ct.
States,
Prince v.
209, 3 L.
199
United
Ed. 2d
(1958);
352
68
United
403,
77
U. S. 218, T. Credit v. Universal C. I. U. S. Corp., States Comment, L. generally Ed. 260 See (1952). Ct. S. Yale L. J. 313-17 (1965). on Gore v. United majority heavy reliance places Gore, States, Jus reliance In supra. inappropriate. That is Congres a Frankfurter found clear and unequivocal tice convict sional intent the be government permitted of the statutorily defendant several punish of a sale narcotics. His analy based offenses out arising narcotics behind federal Congressional intent sis so, e. justly g., statutes has been and perhaps questioned, 67 Yale L. his Note, but, accepting 927-29 (1958); must, statutory value, face we the case interpretation is ones before this entirely different from the presently can be no Court, legislative which unequivocal law, as a federal Furthermore, even matter of divined. In United Yancy of Gore is doubtful. continuing validity States, 1958), 252 F. 2d Cir. Judge Justice) 554 (6 (later criticized the in Gore and very Stewart sharply holding overruled, be felt urged although obliged he strongly before Gore to sustain convictions in the case multiple In brief curiam Court per opinion, Supreme him. Yancy affirmed court. 362 U. divided S. equally 811, 4 Ct. L. Ed. 2d 864 vote (1960). missing Stewart, that of who was Justice had properly disqualified himself his own reviewing decision below. is problem beyond abuse
The seriousness and well-justified There demand strong public question. measures law those who deal against for stern enforcement circumstances, however, not These do warrant our in drugs. system our underpin principles sound ignoring cases, for possession law. these convictions criminal have to distribute should deemed to merged should, therefore, for distribution and the convictions into I would reverse the decision be vacated. Appellate *13 Division in Ruiz State v. and would affirm in State v. Williams. For Ruiz— affirmance State v. Chief Justice Hughes, Kolovsky
Justices Sullivan and —4. Judge Clifford
For reversal—Justice Pashman —1.
For reversal in State Williams —Chief Justice Hughes, Kolovsky Justices Sullivan —4. Judge Clifford For affirmance—Justice Pashman — 1. JERSEY, PLAINTIFF-RESPONDENT, STATE OF NEW DAVIS,
CARL ALEXANDER DEFENDANT-APPELLANT. Argued September 24, 19, 1975. 1974 Decided June