State v. Rivastineo
| Decision Date | 14 November 2016 |
| Citation | 447 N.J.Super. 526,149 A.3d 321 |
| Parties | State of New Jersey, Plaintiff–Appellant, v. Richard Rivastineo, Defendant–Respondent. |
| Court | New Jersey Superior Court — Appellate Division |
447 N.J.Super. 526
149 A.3d 321
State of New Jersey, Plaintiff–Appellant,
v.
Richard Rivastineo, Defendant–Respondent.
Superior Court of New Jersey, Appellate Division.
Argued October 5, 2016
Decided November 14, 2016
Steven A. Yomtov, Deputy Attorney General, argued the cause for appellant (Christopher S. Porrino, Attorney General, attorney; Garima Joshi, Deputy Attorney General, of counsel and on the brief).
John Douard, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Mr. Douard, of counsel and on the brief).
Before Judges Reisner, Koblitz and Sumners.
The opinion of the court was delivered by
KOBLITZ, J.A.D.
The State, with leave granted, appeals from an interlocutory order of March 24, 2016 dismissing two counts of the indictment because the motion judge concluded that the State is precluded from aggregating the weight of cocaine and heroin to achieve a higher degree of crime pursuant to N.J.S.A. 2C:35–5(c). Based on the plain language of the statute as well as the rule of lenity, we affirm.
On September 25, 2015, a State Grand Jury indicted defendant on six counts of drug-related offenses: second-degree conspiracy with one or more persons to distribute or possess cocaine and/or heroin, N.J.S.A. 2C:5–2 (count one); first-degree possession with intent to distribute five ounces or more of heroin and cocaine,
N.J.S.A. 2C:35–5(a)(1), 5(b)(1) and 5(c) (count two); first-degree distribution of five ounces or more of heroin and cocaine, N.J.S.A. 2C:35–5(a)(1), 5(b)(1) and 5(c)(count three); two counts of third-degree possession of a controlled dangerous substance (CDS), one count relating to cocaine and one to heroin, N.J.S.A. 2C:35–10(a)(1) (counts four and five); and fourth-degree possession with intent to distribute drug paraphernalia N.J.S.A. 2C:36–3 (count six).
The State aggregated the weight of 3.6 ounces of cocaine plus 1.8 ounces of heroin seized from defendant during drug sales
on different dates to charge defendant with first-degree possession of a CDS with the intent to distribute (count two) and first-degree distribution of a CDS (count three), both of which require a weight in excess of five ounces.
Defendant moved to dismiss counts two and three of the indictment on the grounds that the State improperly aggregated the quantities of two different drugs for the purpose of charging him with first-degree crimes. On March 24, 2016, Criminal Presiding Judge Marilyn C. Clark granted defendant's motion to dismiss both counts, determining that N.J.S.A. 2C:35–5(c) does not permit aggregation of different drugs to charge a higher degree of crime. We owe no deference to the legal decisions of the trial court. In re Application for a Retail Firearms Dealer's License Renewal , 445 N.J.Super. 80, 89, 136 A. 3d 418 (2016) (citing Manalapan Realty, L.P. v. Twp. Comm. , 140 N.J. 366, 378, 658 A. 2d 1230 (1995) ). After reviewing Judge Clark's reasoning, however, we agree with her analysis, which we substantially follow in this opinion.
The State argues that because cocaine and heroin are included in the same statutory subsection, N.J.S.A. 2C:35–5(b), aggregation of these drugs is appropriate within the meaning and intent of N.J.S.A. 2C:35–5(c) and constitutes a proper exercise of prosecutorial discretion. In rejecting this argument, Judge Clark examined the plain language of the statute.
N.J.S.A. 2C:35–5(a)(1) states that it is unlawful “[t]o manufacture, distribute, or dispense, or to possess ... with intent to
manufacture, distribute or dispense, a controlled dangerous substance.” Pursuant to N.J.S.A. 2C:35–5(b)(1) : “Any person who violates subsection a. with respect to: Heroin, or its analog, or coca leaves and any salt, compound, derivative ... in a quantity of five ounces or more including any adulterants or dilutants is guilty of a crime of the first degree.” (Emphasis added.)
Judge Clark determined that N.J.S.A. 2C:35–5(c) permits aggregation of the same substance possessed or sold on different dates to reach the five-ounce minimum weight requirement for a first-degree charge. The statute, however, refers to substance, not substances. The judge noted that the singular statutory language provides a basis for aggregating...
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