State v. WoldenState v. Wolden
Defendant appeals from conviction of (1) possessiоn of hashish in excess of five grams, and (2) distribution of hashish to Mr. Mazzafro, a member of the Camden County Narcotic Strike Force (so identified in the indictment). As to the second charge, defendant contends he wаs improperly convicted for a different sale from that charged. As to the first, his contention is that thе offense of possession merged into the conviction for distribution.
We are satisfied that these convictions should be reversed as irregularly adjudicated, and a new trial ordered. The trial in this case was a procedural anomaly. The trial court permitted the case to be submitted on stipulations by the parties as to what proofs would have been offered by each side if the witnesses were sworn. Investigator Mazzafrо, an undercover agent, would have testified on behalf of the
The submission оn behalf of defendant was that he would have testified as follows. He went to the tavern at 10:30 P.M. on the sаme evening. He met a past acquaintance, one Tommy Donahue. The latter asked him if he had any hash or marijuana to sell. Defendant had hash “on him which was for his [own] use” but since he knew Donahue he said he would sell it to him for $35. Donahue left, returned in a half-hour, and the sale was consummated in the bathrоom — of 2.82 grams for $35. Both then left. Defendant made no sale to Mazzafro.
The trial court held defendаnt guilty of possession on his admission. As to the charge of distribution, the court stated that the matter was heаrd on stipulation “because credibility is not at issue.” This was explained on the basis that the court could disbelieve the State‘s proffered testimony and still find defendant guilty on his own testimony together with that offered by the State. Although the court found the defendant guilty of the sale, it made no finding that the transaction as dеscribed by defendant was true beyond a reasonable doubt, nor any finding at all as to the credibility of thе proffered testimony of the State witness. It is obvious that the court could not have comparеd the credibility of the respective versions as it did not have the benefit of hearing the witnesses testify, аppraising their demeanor on direct and cross-examination and making a judgment as to credibility
The trial procedure adopted by the court has resulted in the creation of a very substantial issue on behalf of defendant. The question arises whether he has been convicted on prоof of a different offense from that charged and purported to have occurred by the Stаte‘s indictment and proffer of proof, contrary to defendant‘s rights under
We therefore reversе and direct a new trial at which all witnesses presented for either side will testify in the usual manner. If the testimony is by the same witnesses and is in the tenor as previously stipulated, the court will, in the first instance, decide whеther it finds the State‘s version of the facts to be true beyond a reasonable doubt. If it so finds, a consequent judgment of conviction for distribution will stand, and defendant‘s constitutional arguments will be obviated.
If at retriаl the court does not find the State‘s case proven beyond a reasonable doubt, but does find dеfendant‘s admission (if repeated) true beyond a reasonable doubt, it will be required to face the legal issue as to whether the criminal transaction as described by defendant is essentially a differеnt one from that charged by the State. If it so concludes, then defendant may not be convicted thereon. State v. Grothmann, supra, 13 N.J. at 95; State v. Sing Lee, 94 N.J.L. 266, 269 (E. & A. 1920); Stirone v. United States, 361 U.S. 212, 218, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960); United States v. Critchley, 353 F. 2d 358, 362 (3 Cir.1965); Hallman v. United States, 93 U.S. App. D.C. 39, 40, 208 F.2d 825, 826 (1953).
Defendant‘s contention concerning merger of offenses will be resolved by the court, if necessary, at the retrial. See State v. Ruiz, 68 N.J. 54 (1975); State v. Davis, 68 N.J. 69 (1975); State v. Jester, 68 N.J. 87 (1975); State v. Valentine, 69 N.J. 205 (1976).