State v. Blow

CourtSuperior Court of New Jersey
Writing for the CourtSHEBELL
Citation237 N.J.Super. 184,567 A.2d 253
Decision Date06 December 1989
Parties, 57 Ed. Law Rep. 942 STATE of New Jersey, Plaintiff-Respondent, v. Raymond BLOW, Defendant-Appellant.

Page 184

237 N.J.Super. 184
567 A.2d 253, 57 Ed. Law Rep. 942
STATE of New Jersey, Plaintiff-Respondent,
v.
Raymond BLOW, Defendant-Appellant.
Superior Court of New Jersey,
Appellate Division.
Argued Nov. 15, 1989.
Decided Dec. 6, 1989.

[567 A.2d 254]

Page 186

Mordecai Garelick, Asst. Deputy Public Defender, for defendant-appellant (Alfred A. Slocum, Public Defender, attorney, Mordecai Garelick, of counsel and on the brief).

Carol M. Henderson, Deputy Atty. Gen., for plaintiff-respondent (Peter N. Perretti, Jr., Atty. Gen., attorney, Carol M. Henderson, of counsel and on the letter brief).

Page 185

Before Judges KING, SHEBELL and KEEFE.

Page 186

The opinion of the court was delivered by

SHEBELL, J.A.D.

The principal issue in this case is whether refusal to merge the defendant's convictions of possession of controlled dangerous substance (CDS) with intent to distribute and possession with intent to distribute within 1,000 feet of a school, as mandated by our Legislature, is constitutionally permissible. Defendant Raymond Blow appeals from the sentences imposed pursuant to a plea agreement with the Passaic County Prosecutor's Office. Defendant was indicted for possession of heroin ( N.J.S.A. 2C:35-10) (Count 1); possession of less than one-half ounce of heroin with intent to distribute ( N.J.S.A. 2C:35-5a(1) and b(3)) (Count 2), and possession of heroin with intent to distribute within 1000 feet of school property ( N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7) (Count 3). Under the terms of the agreement, the prosecutor recommended[567 A.2d 255] to the judge that Count 1 of the indictment be dismissed; defendant pleaded guilty to Counts 2 and 3 of the indictment.

Defendant was sentenced on Count 3 to imprisonment for a period of five years, three years without parole eligibility. Defendant was given the same sentence on Count 2, concurrently with Count 3. Both sentences were consecutive to the sentence defendant was then serving. Defendant, on each of Counts 2 and 3, was ordered to pay a $1,000 drug enforcement penalty, a $50 laboratory fee, and a $30 Violent Crimes Compensation Board penalty. His driver's license was revoked for

Page 187

a total period of three years, two years on Count 3 and one year on Count 2, consecutively.

Defendant makes the following arguments on appeal: (1) the conviction of possession of CDS with intent to distribute should be merged with the conviction of possession of CDS with intent to distribute within 1,000 feet of a school; (2) New Jersey law requires merger to prevent defendant from being punished twice for the same offense; (3) notwithstanding N.J.S.A. 2C:35-7, Counts 2 and 3 should merge; (4) the sentence imposed is excessive; (5) the custodial sentence imposed is unsupported by the statutory aggravating and mitigating factors; (6) the forensic laboratory fee, imposed pursuant to N.J.S.A. 2C:35-20, should be reduced to $50, and (7) the suspension of defendant's driver's license should be reduced.

I.

Appellant contends that his convictions on Counts 2 and 3 should have been merged and that the sentencing judge's failure to merge those convictions was "incompatible with constitutional considerations and merger would not negate the intention of the legislature."

N.J.S.A. 2C:35-5(a)(1) states, in relevant part, "it shall be unlawful for any person knowingly or purposely ... [t]o ... distribute ... a controlled dangerous substance...." N.J.S.A. 2C:35-7 states, in relevant part:

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.... [t]he 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 N.J.S. 2C:1-8 or any other provisions of law, a conviction arising under this section shall not merge with a conviction

Page 188

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 supplied].

Under the Criminal Code, "[w]hen the same conduct of a defendant may establish the commission of more than one offense," the defendant may not "be convicted of more than one offense if ... [o]ne offense is included in the other." N.J.S.A. 2C:1-8a(1). An offense is so included under N.J.S.A. 2C:1-8d(1) when "[i]t is established by proof of the same or less than all the facts required to establish the commission of the offense charged[.]"

However, "there is no question but that the legislature is empowered to split a simple, continuous transaction into stages, elevate each stage to a consummated crime, and punish each stage separately." State v. Davis, 68 N.J. 69, 78, 342 A.2d 841 (1975). Defendant, however, stresses "the prohibition against multiple punishment for a single wrongdoing" enunciated in Davis. Id. at 77, 342 A.2d 841.

[567 A.2d 256] In Davis, our Supreme Court declined to determine whether the proscription against "double jeopardy" applies not only to "repeated piecemeal prosecution," but also to "a single trial context with asserted multiple punishment arising from convictions based on a multi-count indictment with each count therein allegedly setting forth the same offense." 68 N.J. at 76, 342 A.2d 841. The court, however, stated that "[i]f an accused has committed only one offense, he cannot be punished as if for two." Id. at 77, 342 A.2d 841.

In Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932), the Supreme Court stated, "[t]he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not." This test was recently reaffirmed by the Supreme Court in Ball v. United States, 470 U.S. 856, 861, 105 S.Ct. 1668, 1671, 84 L.Ed.2d 740, 746 (1985). However, in Missouri v. Hunter, the Supreme

Page 189

Court stated that the Blockburger test is applicable only when the legislature has not indicated its intent that a defendant should be convicted of both offenses. 459 U.S. 359, 366-67, 103 S.Ct. 673, 678-79, 74 L.Ed.2d 535, 542-43 (1983), citing Whalen v. United States, 445 U.S. 684, 691-93, 100 S.Ct. 1432, 1437-39, 63 L.Ed.2d 715, 723-25 (1980).

N.J.S.A. 2C:35-7 contains a specific prohibition against merger of offenses, thereby negating the need for a Blockburger-type analysis. Our State Constitution affords a defendant no greater double jeopardy protection than is granted by the federal constitution. See State v. DeLuca, 108 N.J. 98, 102, 527 A.2d 1355, cert. den., 484 U.S. 944, 108 S.Ct. 331, 98 L.Ed.2d 358 (1987); State v. Barnes, 84 N.J. 362, 370, 420 A.2d 303 (1980). Further, in this State we have shown a preference in recent years to avoid the mechanical approach to merger questions, as exemplified by Blockburger, and instead have applied a more flexible approach. See State v. Truglia, 97 N.J. 513, 521, 480 A.2d 912 (1984); State v. Mirault, ...

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16 practice notes
  • State v. Todd
    • United States
    • New Jersey Superior Court – Appellate Division
    • 6 Febrero 1990
    ...raised by defendant in Points II, IV, V and VI have been considered and rejected by this court and the Law Division. See State v. Blow, 237 N.J.Super. 184, 567 A.2d 253 (App.Div.1989); State v. Ogar, 229 N.J.Super. 459, 551 A.2d 1037 (App.Div.1989); State v. Brown, 227 N.J.Super. 429, 437-4......
  • State v. Dillihay
    • United States
    • United States State Supreme Court (New Jersey)
    • 27 Enero 1992
    ...241 N.J.Super. at 95, 574 A.2d 487 (App.Div.1990); State v. Anaya, 238 N.J.Super. 31, 33, 568 A.2d 1208 (App.Div.1990); State v. Blow, 237 N.J.Super. 184, 186, 567 A.2d 253 (App.Div.1989). But see State v. Soto, 241 N.J.Super. 476, 477, 575 A.2d 501 (App.Div.1990) (imposing consecutive sent......
  • State v. Gonzalez
    • United States
    • New Jersey Superior Court – Appellate Division
    • 8 Mayo 1990
    ...crime. 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......
  • State v. Graham
    • United States
    • New Jersey Superior Court – Appellate Division
    • 14 Enero 1991
    ...constitutional double jeopardy issue raised by the defendant on this appeal. We adhere to that decision. See also State v. Blow, 237 N.J.Super. 184, 567 A.2d 253 (App.Div.1989), certif. granted 122 N.J. 153, 584 A.2d 222 (1990). However, because our dissenting colleague has taken a differen......
  • Request a trial to view additional results
16 cases
  • State v. Todd
    • United States
    • New Jersey Superior Court – Appellate Division
    • 6 Febrero 1990
    ...raised by defendant in Points II, IV, V and VI have been considered and rejected by this court and the Law Division. See State v. Blow, 237 N.J.Super. 184, 567 A.2d 253 (App.Div.1989); State v. Ogar, 229 N.J.Super. 459, 551 A.2d 1037 (App.Div.1989); State v. Brown, 227 N.J.Super. 429, 437-4......
  • State v. Dillihay
    • United States
    • United States State Supreme Court (New Jersey)
    • 27 Enero 1992
    ...241 N.J.Super. at 95, 574 A.2d 487 (App.Div.1990); State v. Anaya, 238 N.J.Super. 31, 33, 568 A.2d 1208 (App.Div.1990); State v. Blow, 237 N.J.Super. 184, 186, 567 A.2d 253 (App.Div.1989). But see State v. Soto, 241 N.J.Super. 476, 477, 575 A.2d 501 (App.Div.1990) (imposing consecutive sent......
  • State v. Gonzalez
    • United States
    • New Jersey Superior Court – Appellate Division
    • 8 Mayo 1990
    ...crime. 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......
  • State v. Graham
    • United States
    • New Jersey Superior Court – Appellate Division
    • 14 Enero 1991
    ...constitutional double jeopardy issue raised by the defendant on this appeal. We adhere to that decision. See also State v. Blow, 237 N.J.Super. 184, 567 A.2d 253 (App.Div.1989), certif. granted 122 N.J. 153, 584 A.2d 222 (1990). However, because our dissenting colleague has taken a differen......
  • Request a trial to view additional results

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