State v. Gonzalez

• Decision Date: 09 April 1991
• Citation: 588 A.2d 816,123 N.J. 462
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Frank GONZALEZ, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 462

123 N.J. 462

588 A.2d 816

STATE of New Jersey, Plaintiff-Respondent, v. Frank GONZALEZ, Defendant-Appellant.

Supreme Court of New Jersey.

Argued Jan. 2, 1990.

Decided April 9, 1991.

Susan Green, Asst. Deputy Public Defender, for defendant-appellant (Wilfredo Caraballo, Public Defender, attorney).

Nancy Permes Barton, Deputy Atty. Gen., for plaintiff-respondent (Robert J. Del Tufo, Atty. Gen., attorney).

PER CURIAM.

A jury convicted defendant, Frank Gonzalez, of unlawful distribution of cocaine, a violation of N.J.S.A. 2C:35-5(a) (the Section 5 offense). The amount distributed was less than one-half ounce, making the crime one of the third degree. N.J.S.A. 2C:35-5b(3). Because the jury determined that the distribution had been within 1,000 feet of school property, a violation of N.J.S.A. 2C:35-7 (the Section 7 offense), it convicted defendant of that third-degree crime as well. The trial court sentenced Gonzalez to two concurrent five-year custodial terms, with a minimum parole-ineligibility period on the Section 7 offense as mandated by the statute. In addition, the court imposed fees and monetary penalties and revoked defendant's driver's license.

Rejecting defendant's argument that the trial court should have merged the Section 5 and the Section 7 offenses, the Appellate Division affirmed, State v. Gonzalez, 241 N.J.Super. 92, 574 A.2d 487 (1990), relying on Section 7's antimerger provision, which reads:

Notwithstanding the provisions of N.J.S. 2C:1-8 [dealing with prosecution of conduct that constitutes more than one offense] 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).

Judge Skillman dissented from so much of the majority opinion as upheld defendant's conviction and sentence under N.J.S.A. 2C:35-5. Id. at 99-108, 574 A.2d 487. The dissent interpreted Section 7's antimerger provision to bar the merger of convictions under that section into convictions under Section 5 but not to apply to the merger of convictions under Section 5 into convictions under Section 7. Defendant's appeal is here as of right because of the dissent below. R. 2:2-1(a)(2).

We reverse the judgment below to the extent that it affirms defendant's conviction of the Section 5 offense and prohibits its merger into the Section 7 violation. We do so substantially on the basis of the perceptive analysis contained in Judge Skillman's dissent, in which he addresses--correctly, in our view--(1) the law of merger, 241 N.J.Super. at 99-100, 106-08, 574 A.2d 487; (2) the antimerger provision of Section 7, id. at 100-03, 104-06, 574 A.2d 487; and (3) applicable principles of statutory construction, id. at 103-04, 574 A.2d 487.

We add a note of caution, however. Judge Skillman's opinion can be read to allow, when general merger principles would apply, the merger of all N.J.S.A. 2C:35-5(a) convictions for distribution into N.J.S.A. 2C:35-7 convictions for distribution within 1,000 feet of school property. Our holding, we emphasize, is narrower, and is limited only to those Section 5 offenses that are of the third or fourth degree, e.g., N.J.S.A. 2C:35-5b(3), (5), (9), (11), (12), (13), and (14). We do not reach, and we imply no position on, the issue of merger of first- and second-degree Section 5 offenses with a Section 7 crime, nor the constitutional implications in the event of non-merger. Ours is strictly a statutory-interpretation decision. See State v. Churchdale Leasing, Inc., 115 N.J. 83, 100-10, 557 A.2d 277 (1989), and id. at 112-25, 557 A.2d 277 (Handler, J., concurring). For a determination of the above-stated reserved question we are content to await a case in which, unlike this appeal, the issues are posed directly and in which the argument is sharply focused. On our docket is State v. Dillihay, decision below reported at 241 N.J.Super. 553, 575 A.2d 876 (App.Div.1990), here as of right, which raises the propriety of merger of a second-degree Section 5 offense with a Section 7 crime.

The judgment of the Appellate Division is reversed in part, and the cause is remanded to the trial court for entry of an amended judgment vacating defendant's conviction under N.J.S.A. 2C:35-5a(1) and -5b(3).

O'HERN, J., dissenting.

It is one thing to sell drugs; it is another thing to sell drugs on school grounds; it is still another thing to employ children in the drug trade. The Legislature has viewed those acts as posing distinct threats to society. It has made each of them a separate criminal offense. It has prescribed separate and distinct punishments for each of the offenses.

The Legislature has expressly stated that the distinct offenses shall not merge. N.J.S.A. 2C:35-7, which criminalizes the sale of drugs on school property, states that "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)." N.J.S.A. 2C:35-6 states "a conviction arising under this section shall not merge with a conviction for a violation of N.J.S. 2C:35-3 (leader of narcotics trafficking network), N.J.S. 2C:35-4 (maintaining or operating a CDS production facility), N.J.S. 2C:35-5 (manufacturing, distributing or dispensing), or N.J.S. 2C:35-9 (strict liability for drug induced death)."

Notwithstanding that the Legislature has expressly stated that courts should not merge those distinct offenses, this Court has done exactly that. Profits are the key to the drug trade. Putting aside for a moment the range of sentences involved, the financial disincentive to make a drug deal in a school yard is no greater than to make a drug deal at a safe house. (Each of the separate offenses carries a mandatory drug enforcement and demand reduction (DEDR) penalty, which is placed in a fund used for alcohol- and drug-abuse programs. N.J.S.A. 2C:35-15.) Considering the special evil that merchants of drugs inflict on children, I am certain that the Legislature did not intend that result, and no principle of statutory or constitutional law requires it.

I say that no principle of statutory law compels that result because the Legislature itself has prescribed that there shall be no statutory merger. The ordinary principles of statutory merger of convictions, see N.J.S.A. 2C:1-8 (convictions should be merged when one offense "is established by proof of the same or less than all the facts required to establish" the other offense), simply do not apply when the Legislature has provided otherwise. As stated in N.J.S.A. 2C:1-2c, the "provisions of the code shall be construed according to the fair import of their terms but * * * the language * * * shall be interpreted to further the general purposes stated in this section and the special purposes of the particular provision involved." (Emphasis added.) The constitutional principle is equally clear and well settled:

In contrast to the double jeopardy protection ¹ against multiple trials, the final component of double jeopardy--protection against cumulative punishments--is designed to ensure that the sentencing discretion of courts is confined to the limits established by the legislature. Because the substantive power to prescribe crimes and determine punishments is vested with the legislature, the question under the Double Jeopardy Clause whether punishments are "multiple" is essentially one of legislative intent.

[Ohio v. Johnson, 467 U.S. 493, 499, 104 S.Ct. 2536, 2540-41, 81 L.Ed.2d 425, 433 (1984) (citations omitted).]

Thus, "[w]here [the Legislature] intended, as it did here, to impose multiple punishments, imposition of such sentences does not violate the Constitution." Albernaz v. United States, 450 U.S. 333, 344, 101 S.Ct. 1137, 1145, 67 L.Ed.2d 275, 285 (1981).

To understand how the first two components of double jeopardy relate to today's issue, we need to give an example. Let us assume that the State had first tried defendant for a sale of drugs on school property committed on October 26, 1987, under Section 7. Under no circumstances would we ever say that he could later be tried for a straight sale of drugs (the Section 5 violation) if but a single sale had occurred at that time. That is the "slice of life" for which you can only be put in jeopardy once. The Supreme Court has recently affirmed that principle. Grady v. Corbin, 495 U.S. ----, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990).

In applying the third aspect of double jeopardy to this case, we must examine the common-law doctrine of merger. The judicial and statutory doctrines of merger are essentially driven by considerations of fairness. In recent years, the Court has eschewed the mechanical application of formulas to determine whether the merger doctrine applies. Instead, the Court uses

a certain flexibility of approach * * *, attended by considerations of "fairness and fulfillment of reasonable expectations in the light of constitutional and common law goals." Such an approach would entail analysis of the evidence in terms of, among other things, the time and place of each purported violation; whether the proof submitted as to one count of the indictment would be a necessary ingredient to a conviction under another count; whether one act was an integral part of a larger scheme or episode; the intent of the accused; and the consequences of the criminal standards transgressed. Certainly there are other factors to be considered and, along with the above, accorded greater or lesser weight depending on the circumstances of the particular case.

[State v. Davis, 68 N.J. 69, 81, 342 A.2d 841 (1975) (citation omitted).]

In Davis, convictions on separate counts of unlawful possession and unlawful sale of a narcotic drug did not merge because evidence showed...