State v. S.C.

• Decision Date: 25 March 1996
• Citation: 672 A.2d 1264,289 N.J.Super. 61
• Parties: STATE of New Jersey, Plaintiff/Respondent, v. S.C., Defendant/Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 61

289 N.J.Super. 61

672 A.2d 1264

STATE of New Jersey, Plaintiff/Respondent, v. S.C., Defendant/Appellant.

Superior Court of New Jersey,

Appellate Division.

Argued Dec. 21, 1995.

Decided March 25, 1996.

Joan Van Pelt, Deputy Public Defender, for appellant (Susan L. Reisner, Public Defender, attorney; Edward P. Hannigan, Assistant Deputy Public Defender, of counsel and on the brief).

Paul H. Heinzel, Deputy Attorney General, for respondent (Deborah T. Poritz, Attorney General of the State of New Jersey, attorney; Mr. Heinzel, of counsel and on the brief).

Before Judges STERN, WALLACE and NEWMAN.

The opinion of the court was delivered by

WALLACE, J.A.D.

Defendant was indicted for the murder of E.N., contrary to N.J.S.A. 2C:11-3a(1) and/or (2) (count one); distribution of cocaine to a minor, contrary to N.J.S.A. 2C:35-5a(1) and 2C:35-8 (count two); and endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4a (count three). In a separate indictment, defendant was charged with possession of heroin, contrary to N.J.S.A. 2C:35-10a(1). Defendant entered into a plea agreement with the State. In accordance with the plea agreement defendant pled guilty to aggravated manslaughter, a lesser included offense of murder, and possession of heroin. He also pled guilty to an accusation charging him with employment of a juvenile in a drug distribution scheme, contrary to N.J.S.A. 2C:35-6. The State, for its part of the agreement, recommended that counts two and three of the indictment be dismissed. The trial judge accepted defendant's pleas, and imposed a thirty year term of imprisonment with fifteen years of parole ineligibility for the manslaughter charge, a concurrent five year term for the possession of heroin charge, and a consecutive ten-year term with five years of parole ineligibility for employing a juvenile in a drug distribution scheme. Defendant's aggregate sentence was forty years in prison with twenty years of parole ineligibility. The remaining counts were dismissed.

Defendant filed a notice of appeal and the matter was placed on our sentencing calendar pursuant to R. 2:9-11. Following argument, we requested that the issues raised be fully briefed.

On appeal, defendant essentially claims: (1) there was an insufficient factual basis for the plea to using a juvenile in a drug distribution scheme; (2) the remaining sentences imposed cannot be disturbed without violating principles of double jeopardy; and (3) the sentence was excessive. We find no basis to disturb defendant's guilty plea and sentence.

It is not necessary to set forth the facts in detail. Briefly, on September 25, 1991, defendant took three year old E.N., his fiancee's son, with him on a trip from their home in Milton, Delaware to New Jersey and New York. Defendant took the trip to purchase heroin in New York for his personal use and for the use of his fiancee upon his return to Delaware. During the trip defendant purchased and consumed heroin in New Jersey and New York. Defendant and E.N. stayed with defendant's family in Irvington one night, spent several nights in various motels, and stayed at least one night in defendant's car. He disciplined E.N. by hitting him, sometimes with his hand or fist. According to defendant, he beat E.N. because he "was angry [that E.N.] kept messing up his clothes, messing on himself and messing on the floor in the motel room." Defendant acknowledged that by mistreating E.N. in this manner, he was creating a "substantial risk of causing him harm or death...." On the final night of E.N.'s life, defendant beat E.N., who then "messed" his pants again. Defendant washed E.N. and put him to bed. E.N. began vomiting. Defendant merely placed the covers over E.N. and sat on the foot of the bed. The next morning E.N. did not respond when defendant tried to wake him. Defendant drove to his mother's house and told his mother and sister that he thought E.N. was dead. Defendant's sister returned to the motel with him where she confirmed that E.N. was dead. The police were contacted and defendant was arrested.

Defendant contends that his conviction and sentence for employing a juvenile in a drug distribution scheme must be vacated because there was not an adequate factual basis to support his guilty plea to the charge. The State disputes this contention and cites R. 3:9-3(f) in support of its argument that defendant's unconditional guilty plea bars him from raising the claim.

Initially, we are satisfied that defendant may challenge this conviction despite his failure to enter a conditional plea pursuant to R. 3:9-3(f), or otherwise move to dismiss the accusation. The challenge to the existence of a factual basis for a plea is not waived by a guilty plea. See State v. Lightner, 99 N.J. 313, 315-16, 491 A.2d 1273 (1985); State v. Butler, 89 N.J. 220, 224, 445 A.2d 399 (1982).

At the plea hearing, defendant gave the following sworn testimony that formed the basis of his plea of guilty to employing a juvenile in a drug distribution scheme:

THE COURT: All right. Let us go to the employing a juvenile in a drug distribution scheme.

Q. Mr. [C], referring back to your statement with regard to picking up [E.N.] in Delaware and bringing him into New Jersey. Did there come a point in time from September the 25th through September the 30th that you drove into New York and you purchased an amount of narcotics?

A. Yes, ma'am.

Q. And, in fact, you purchased what you understood to be heroin; is that right?

A. Yes, ma'am.

Q. And you bought several decks of heroin; is that right?

A. Several bundles.

Q. Several bundles of heroin. Mr. [C], at some point in time, is it true you were then going to return to Delaware so that you and [S.N.] would be able to use drugs?

A. Yes, ma'am.

Q. And the purpose of having [E.N.] in the car at that time, was it so that the police would not stop you along the highway, seeing [you] had a small child in the car?

A. Yes, ma'am.

Q. And [E.N.] was placed in the car for that purpose?

A. Yes, ma'am.

Q. So that you could go buy the drugs and then bring them down to [S.N.]?

A. Yes, ma'am.

THE COURT: Mr. Kolano, any questions in that regard?

EXAMINATION BY MR. KOLANO:

Q. When you returned to Delaware you were going to share the drugs you had purchased with [S.N.]?

A. Yes, sir.

Defendant contends that he did not "use" E.N. to facilitate the distribution of drugs and that the passive presence of a child does not meet the active role in the scheme that the legislature intended. Further, he contends that a three year old is not within the class of children protected by N.J.S.A. 2C:35-6 as demonstrated by the legislature's use of the term juvenile rather than a word such as minor. Finally, defendant contends that there was no evidence of a drug distribution scheme.

N.J.S.A. 2C:35-6, Employing a juvenile in a drug distribution scheme, provides in pertinent part:

Any person being at least 18 years of age who knowingly uses, solicits, directs, hires or employs a person 17 years of age or younger to violate N.J.S. 2C:35-4 or subsection a. of N.J.S. 2C:35-5, is guilty of a crime of the second degree ...

It shall be no defense to a prosecution under this section that the actor mistakenly believed that the person which the actor used, solicited, directed, hired or employed was 18 years of age or older, even if such mistaken belief was reasonable.

Defendant urges that the presence of the word "uses" in the statute makes it ambiguous. He argues that the other verbs "solicits, directs, hires or employs" all signify some active participation by the juvenile and that the juvenile must do something which "if he possessed guilty knowledge" would constitute a violation of N.J.S.A. 2C:35-5a or 2C:35-4. Therefore, defendant concludes that since the four other verbs are all active, the Legislature must have intended the juvenile to play an active role, rather than merely a passive one in the violation of N.J.S.A. 2C:35-4 or N.J.S.A. 2C:35-5a.

The State argues that courts have not hesitated to give "use" a broad interpretation consistent with its ordinary meaning and cites Smith v. United States, 508 U.S. 223, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993), in support of its argument. Smith held that the exchange of a gun for narcotics constituted the "use" of a firearm "during and in relation to ... [a] drug trafficking crime" within the meaning of 18 U.S.C.A. § 924(c)(1). Id. at ----, 113 S.Ct. at 2054. The Court rejected the argument that Congress intended the statute to apply only when a firearm is used as a weapon. Ibid.; cf. Bailey v. United States, 516 U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995) (use denotes active employment under § 924(c)(1) and a firearm inside a bag in a locked car trunk is not an active use of the firearm).

We reject defendant's interpretation of the word "use" in N.J.S.A. 2C:35-6 and agree with the State's contention that the word "use" is to be given a broad interpretation consistent with its ordinary meaning. First, we find no ambiguity in the statute as the statutory language is clear. Thus, we must "enforce [the language] according to its terms." State v. Maguire, 84 N.J. 508, 528, 423 A.2d 294 (1980). "Absent any explicit indications of specific meanings, the words used in a statute carry their ordinary and well-understood meanings." State v. Mortimer, 135 N.J. 517, 532, 641 A.2d 257 (1994), cert. denied, --- U.S. ----, 115 S.Ct. 440, 130 L.Ed.2d 351 (1994); State v. Afanador, 134 N.J. 162, 171, 631 A.2d 946 (1993). Webster's Third New International Dictionary 2523-24 (16th ed. 1971), defines the verb "to use" as "to put into action or service; ... employ" or "to carry out a purpose or action by means of; make instrumental to an end or process; apply to advantage; turn to account; utilize." As such, the word "use" has a broad meaning.

The official commentary to the Comprehensive Drug Reform Act of 1986, L. 1987, c. 106, adopted July 1987, states the following as the legislative...