State v. Blow

• Decision Date: 06 December 1989
• Citation: 237 N.J.Super. 184,567 A.2d 253
• Parties: , 57 Ed. Law Rep. 942 STATE of New Jersey, Plaintiff-Respondent, v. Raymond BLOW, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

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.

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).

Before Judges KING, SHEBELL and KEEFE.

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 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 His driver's license was revoked for a total period of three years, two years on Count 3 and one year on Count 2, consecutively.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 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.

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 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, 92 N.J. 492, 501-02, 457 A.2d 455 (1983).

Nonetheless, we must examine whether, despite Davis' "fundamental point" that "[i]f an accused has committed only one offense he cannot be punished as if for two," Davis, 68 N.J. at 77, 342 A.2d 841, "multiple punishment" under N.J.S.A. 2C:35-5 and 2C:35-7 is permissible even though defendant has not been shown to have distributed drugs both outside and within the school zone. Missouri v. Hunter instructs that the Double Jeopardy Clause of the Fifth Amendment does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended. 459 U.S. at 366, 103 S.Ct. at 678, 74 L.Ed.2d at 542.

In this State, when each offense contains a separate and distinct element from the other, our courts have not hesitated to find that the charges do not merge. See State v. Bowens, 108 N.J. 622, 639, 532 A.2d 215 (1987); State v. Crouch, 225 N.J.Super. 100, 109, 541 A.2d 1092 (App.Div.1988); State v. Jackson, 204 N.J.Super. 13, 23, 497 A.2d 874 (App.Div.1983), aff'd sub nom. State v. Hardison, 99 N.J. 379, 492 A.2d 1009 (1985). See also United States v. Wright-Barker, 784 F.2d 161, 173 (3d Cir.1986); United States v. Kenny, 462 F.2d 1205, 1215 (3d Cir.), cert. den., 409 U.S. 914, 93 S.Ct. 233, 34 L.Ed.2d 176 (1972); United States v. Kafes, 214 F.2d 887, 891 (3d Cir.), cert. den., 348 U.S. 887, 75 S.Ct. 207, 99 L.Ed. 697 (1954). In the present case, however, the charges do not each contain a distinct element. The charge under N.J.S.A. 2C:35-7 includes the elements of an offense under N.J.S.A. 2C:35-5, but with the added element that it be committed within 1,000 feet of a school.

Our case law concerning statutes in which the elements of the offenses overlap, with only one offense containing additional elements, is divided. If all of the elements of one offense are part of the proof necessary to establish a violation of another offense, the first charge is generally known as a lesser-included offense, and merger of the two charges is ordinarily mandated. State v. Jones, 213 N.J.Super. 562, 568, 517 A.2d 1219 (App.Div.1986). See also State v. Battle, 209 N.J.Super. 255, 259, 507 A.2d 297 (App.Div.), certif. den., 105 N.J. 560, 561, 523 A.2d 194 (1986); State v. Johnson, 203 N.J.Super. 127, 134-35, 495 A.2d 1367 (App.Div.), certif. den., 102 N.J. 312, 508 A.2d 195...