State v. Leonardo

• Decision Date: 30 March 1970
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. William LEONARDO, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 442

109 N.J.Super. 442

263 A.2d 785

STATE of New Jersey, Plaintiff-Respondent, v. William LEONARDO, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Argued March 9, 1970.

Decided March 30, 1970.

James A. Palmieri, Orange, for appellant.

Edward C. Laird, Asst. Prosecutor, for respondent (Joseph P. Lordi, Essex County Prosecutor, attorney).

Before Judges KILKENNY, LABRECQUE and LEONARD.

The opinion of the court was delivered by

LEONARD, J.A.D.

Defendant appeals a judgment of conviction by the County Court for being under the influence of a barbiturate (N.J.S.A. 2A:170--77.8), entered following a trial De novo upon an appeal from the municipal court. Defendant was sentenced to the county penitentiary for six months.

On January 19, 1968 defendant was apprehended by Bloomfield Patrolman DeMasi at approximately 6:45 P.M. At that time defendant and another man were slumped over in the front seat of an automobile. DeMasi nudged defendant, who thereupon started and mumbled but never answered the question as to what was wrong. The officer then recognized him as a registered narcotic addict. Defendant was placed under arrest and searched. The search revealed a small plastic canister containing three white pills with the letters CIBA on them.

At or about 7:15 that evening defendant was examined by Bloomfield police surgeon Galioto at the police station. The physician testified that defendant was under the influence of Doriden, a drug similar in its action to phenobarbital, a barbiturate. The drug induces narcosis and sleep and is usually prescribed at bedtime. Defendant told the doctor that he had taken two pills that day, the last one at 5 P.M.

Upon arriving at headquarters Patrolman DeMasi called the proprietor of the drug store and the doctor whose names appeared on the container. He ascertained that a prescription issued to defendant by a Dr. Moretti had been filled the night before for 15 pills.

Defendant took the stand and admitted having the pills pursuant to a prescription given to him by his physician, Dr. Moretti. He conceded that although the prescription was for one at bedtime, he had taken two during the day of his arrest. He testified that his doctor told him that he could take the drug during the day as a tranquilizer. However, Dr. Moretti, who was treating defendant for a gastric neurosis and a nervous condition, testified that he told him that he could take no more than a half of a tablet during the day.

In attempting to account for the 15 pills defendant testified that in addition to the 2 he had taken, 3 were in the container, 1 1/2 were found in the car and 8 1/2 were at his home at the time of his arrest. At the trial he produced an envelope containing 8 1/2 pills.

The trial judge was not impressed with defendant's testimony. From all of the evidence the judge found there was no basis for a conclusion that the pills in the envelope were the same as were in the original prescription bottle, and it was more plausible that defendant had during the day taken a good many of the 12 tablets that were missing from the bottle. Accordingly, the judge concluded that the State had sustained its burden of proving that defendant was under the influence of the drugs.

Defendant on this appeal does not challenge the trial judge's factual finding as to the amount of pills he consumed. Rather, he advances the legal argument that a person is entitled to an acquittal of being a disorderly person for using or being under the influence of a prescription legend drug in violation of N.J.S.A. 2A:170--77.8, if it appears that he obtained the drugs on the valid prescription of a duly licensed physician. In support of this argument he asserts that there is nothing in the statute which states that only the proper and prescribed dosage must be taken. Thus, he contends now, as he did below, that having obtained the drugs pursuant to such a valid prescription, he was entitled to an acquital, even though he consumed them in excess of the prescribed dosage.

N.J.S.A. 2A:170--77.8 in its present form provides:

Except as hereinafter provided, any person who uses or is under the influence of, or who possesses or has under his control, in any form, any depressant or stimulant drug as defined pursuant to law or any other prescription legend drug, which is not a narcotic drug within the meaning of chapter 18 of Title 24 of the Revised Statutes, Unless obtained from, or on a valid prescription of, a duly licensed physician, veterinarian or dentist, is a disorderly person.

In a prosecution under this act, it shall not be necessary for the State to prove that the accused did use or was under the influence of any specific drug or drugs, but it shall be sufficient for a conviction under this act for the State to prove that the accused did use or was under the influence of some drug or drugs as aforesaid by proving that the accused did manifest physical and physiological symptoms or reactions caused by the use of any such drug. (Emphasis added)

The original section, passed in 1962, in its pertinent part provided:

Except as hereinafter provided, any person who possesses or has under his control, in any form, amphetamine, barbiturate, barbital, hypnotic or somnifacient drugs, tranquilizers or any prescription legend drug which is not a narcotic drug within the meaning of section 24:18--2 of the Revised Statutes, unless obtained from, or on a valid prescription of, a duly licensed physician, veterinarian or dentist, is a disorderly person. (L.1962, c. 113)

In 1964 the original section was amended to add the italicized words noted below.

Except as hereinafter provided, any person Who uses or is under the influence of, or who possesses or has under his control, amphetamine, barbiturate, barbital, hypnotic or somnifacient drugs, tranquilizers, or any prescription legend drug, In any form, which is not a narcotic drug within the meaning of section 24:18--2 of the Revised Statutes, unless obtained from, or on a valid prescription of, a duly licensed physician, veterinarian or dentist, is a disorderly person.

The 1964 amendment also added the second paragraph.

In 1966 a more inclusive general classification of the prohibited drugs was substituted for those previously enumerated.

From the statutory history it is clear that the Legislature in 1962 originally sought only to make illegal possession or control of a legend drug, other than narcotics, disorderly conduct. It is equally as clear that at the same time it also sought to except from this illegality, possession of such drugs as were 'obtained from or on a valid prescription of, a duly licensed physician, veterinarian or dentist.' This act made no reference to any offense other than possession or control. However, in 1964 the Legislature extended the scope of the act by also making one who uses or is under the influence of these drugs a disorderly person. At that time,...