State v. Gonzalez
| Decision Date | 08 May 1990 |
| Citation | 574 A.2d 487,241 N.J.Super. 92 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Frank GONZALEZ, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
Thomas S. Smith, Jr., Acting Public Defender, for defendant-appellant (Susan Green, Asst. Deputy Public Defender, of counsel and on the brief).
Robert J. Del Tufo, Atty. Gen., for plaintiff-respondent (Nancy Peremes, Deputy Atty. Gen., of counsel and on the brief).
Before Judges J.H. COLEMAN, BRODY and SKILLMAN.
The opinion of the court was delivered by
BRODY, J.A.D.
Defendant sold 0.17 grams of cocaine to an undercover police officer near a high school. As a result, he was convicted under the Comprehensive Drug Reform Act of 1986, N.J.S.A. 2C:35-1 et seq. (Drug Reform Act), of third-degree unlawful distribution of less than one-half ounce of cocaine, a violation of N.J.S.A. 2C:35-5a(1) and -5b(3), and third-degree distribution of a controlled dangerous substance within 1,000 feet of school property, a violation of N.J.S.A. 2C:35-7 (Section 7). The trial judge imposed two concurrent five-year prison terms, a minimum of three years to be served before parole eligibility for the sale near a school as mandated by Section 7. The judge also imposed for each crime a Drug Enforcement and Demand Reduction (DEDR) penalty of $2,000, a lab fee of $50, and a Violent Crimes Compensation Board penalty of $30. Finally, the judge revoked defendant's driver's license for two years.
Defendant's arguments, which are not directed to his guilt but to various aspects of the sentencing process, are as follows:
I. THE NON-MERGER PROVISION OF N.J.S.A. 2C:35-7 VIOLATES BOTH STATE AND FEDERAL PROHIBITIONS AGAINST DOUBLE JEOPARDY. ( . (Not Raised Below.)
A. New Jersey Law Requires Merger To Prevent Defendant From Being Punished Twice For The Same Offense.
B. Notwithstanding N.J.S.A. 2C:35-7 The Defendant's Convictions For Distribution of CDS And Distribution Of CDS Within 1000 Feet Of School Property Should Be Merged.
II. THE "WITHIN 1,000 FEET OF ANY SCHOOL PROPERTY" PROVISION OF N.J.S.A. 2C:35-7 VIOLATES BOTH THE STATE AND FEDERAL CONSTITUTIONS FACIALLY AND AS APPLIED ( . (Not Raised Below.)
A. The "Within 1,000 Feet of School Property" Provision of N.J.S.A. 2C:35-7 Is Unconstitutionally Vague On Its Face And As Applied Herein.
B. This Court Should Render N.J.S.A. 2C:35-7 Constitutional By Limiting The Reach Of The Statute To Offenses That Occur Within Schools Or On School Property When School Is In Session And Children Are Present.
C. Application of N.J.S.A. 2C:35-7 To The Case At Bar Denied Defendant Due Process Of Law And Equal Protection Of The Law Under The State And Federal Constitutions.
1. Defendant Was Denied His Right To Due Process Of Law ( .
2. Defendant Has Been Denied His Right To Equal Protection Of The Law ( .
V. THE TRIAL COURT ERRED IN IMPOSING A SENTENCE GREATER THAN THE PRESUMPTIVE TERM AND IN FAILING TO SET FORTH REASONS ON THE RECORD.
The State concedes that the DEDR penalty for each conviction must be reduced because it exceeds $1,000, the sum mandated by N.J.S.A. 2C:35-15 for the conviction of a third-degree drug 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) (), State v. Anaya, 238 N.J.Super. 31, 568 A.2d 1208 (App.Div.1990) (), and State v. Ogar, 229 N.J.Super. 459, 551 A.2d 1037 (App.Div.1989) ().
Our colleague's dissent prompts a brief response. N.J.S.A. 2C:35-5 (Section 5) establishes various crimes related to the manufacture and distribution of controlled dangerous substances. Depending upon the nature and quantity of the substance, the crimes range in seriousness from crimes of the first degree specifically mandating imposition of a minimum term of imprisonment before parole eligibility to crimes of the fourth degree for which there need be no term of imprisonment. It is clear to us that by its enactment of the non-merger provision of Section 7, the Legislature intended that when a defendant is convicted of dealing in CDS near a school, the sentencing judge may impose the full panoply of third-degree-crime penalties, not just the Section 7 mandatory period of parole ineligibility, in addition to the penalties available for conviction of the underlying Section 5 offense.
Recognizing that in some cases non-merger would be contrary to the general merger provisions of the Code found in N.J.S.A. 2C:1-8 and possibly contrary to other merger principles, Section 7 provides, "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...." It is hard to imagine the Legislature speaking with a clearer voice. "The provisions of the code shall be construed according to the fair import of their terms...." N.J.S.A. 2C:1-2c.
The non-merger provision of Section 7 affects only Section 5 crimes for which there would otherwise be a merger under N.J.S.A. 2C:1-8 and under more flexible merger principles. Under N.J.S.A. 2C:1-8, each crime must have an element not shared by the other. An element of most of the fourteen Section 5 crimes is dealing in a minimum amount of a controlled dangerous substance (CDS), which is not an element of the Section 7 crime. An element of the Section 7 crime is conduct near a school, which is not an element of the Section 5 crimes. Under more flexible merger principles, the Legislature's concern was different respecting these Section 5 crimes and the Section 7 crime. See State v. Miller, 108 N.J. 112, 118, 527 A.2d 1362 (1987). The Legislature's concern in enacting these Section 5 crimes was to punish those who deal in certain minimum quantities of CDS. Its concern in enacting the Section 7 crime was to punish those who deal in any quantity of CDS near schools.
Section 5 crimes that would merge "into" the Section 7 crime under ordinary merger principles are third-degree 5b(3), third-degree 5b(5), third-degree 5b(9), fourth-degree 5b(12), third-degree 5b(13) and fourth-degree 5b(14). These Section 5 crimes, which do not have a minimum quantity of CDS as an element, are of the same or lower degree than the Section 7 crime and do not carry a mandatory period of parole ineligibility. The Section 7 crime, which carries a mandatory period of parole ineligibility, ordinarily would not merge "into" any of them, see State v. Connell, 208 N.J.Super. 688, 696, 506 A.2d 829 (App.Div.1986). Thus as to these offenses, there is no need for a provision in Section 7 to prevent merger of that crime "into" a Section 5 offense, the only function our dissenting colleague attributes to that provision.
The only Section 5 crime that does not have dealing in a minimum quantity of CDS as an element and is of a higher degree than the third-degree Section 7 crime is second-degree 5b(7), dealing in less than 100 milligrams of lysergic acid diethylamide or less than 10 grams of phencyclidine. We do not believe that the Legislature intended that the only effect of the non-merger provision of Section 7 would be to prevent a merger of dealing in CDS near a school "into" the 5b(7) crime. The provision itself bars merger "with," not "into," a Section 5 conviction. Also, the Legislature knew that there was no need to prevent such merger solely to preserve the mandatory parole ineligibility feature of Section 7, as contended in the dissent, because we previously had held that that feature of the sentence is preserved in a merger. State v. Connell, supra (). "It is well settled that in construing a statute it is to be assumed that the Legislature was and is thoroughly conversant with its own legislation and the judicial construction thereon." State v. McCall, 14 N.J. 538, 547, 103 A.2d 376 (1954).
We are satisfied from a careful review of this record that the other issues raised are clearly without merit and require no further discussion. R. 2:11-3(e)(2).
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