State v. Sharkey

Citation497 A.2d 1291,204 N.J.Super. 192
PartiesSTATE of New Jersey, Plaintiff-Respondent, v. Terence W. SHARKEY, Defendant-Appellant.
Decision Date11 September 1985
CourtNew Jersey Superior Court – Appellate Division

Robert Seelenfreund, Asst. Public Defender, for defendant-appellant (Thomas S. Smith, Acting Public Defender, attorney, Trenton, James K. Smith, Jr., Deputy Public Defender, East Orange, of counsel and on brief).

Carol M. Henderson, Deputy Atty. Gen., Trenton, for plaintiff-respondent (Irwin I. Kimmelman, Atty. Gen., attorney; Arlene R. Weiss, Deputy Atty. Gen., Trenton, of counsel and on letter brief).

Before Judges SIMPSON and GAYNOR.

The opinion of the court was delivered by

GAYNOR, J.A.D.

In this case, defendant challenges the constitutionality of the "look-alike drug" statute, N.J.S.A. 24:21-19.1 et seq., on the grounds of its alleged vagueness, overbreadth and creation of an irrational presumption. We disagree with these attacks and find that the statute does not violate any constitutional requirement. Furthermore, we question defendant's standing to assert these statutory defects generally in view of the circumstances surrounding the application of the statute to his conduct. We are also unpersuaded that the trial court committed reversible error in excluding an exhibit proffered by defendant. Accordingly, the judgment of conviction is affirmed.

The facts giving rise to defendant's arrest and conviction of possession of look-alike drugs with intent to distribute are not in dispute. On October 6, 1982 at approximately 2:20 a.m., officers on patrol in Boonton, N.J. observed a vehicle being operated in an erratic manner. After stopping the vehicle and subjecting the driver to certain field tests for sobriety, the driver was arrested for operating the vehicle while intoxicated. As defendant, who had been a passenger in the vehicle, got out in response to an officer's request, two white capsules fell to the ground. A white plastic bag partially hanging out of defendant's pants pocket was then seized by the officers and found to contain some 200 similar capsules. By virtue of their size and shape, the officers believed the capsules to possibly contain a controlled dangerous substance and, based on this assessment, placed defendant under arrest. The following morning defendant gave a statement to the police indicating that he believed the pills to be "speed" and that he had gotten them the previous evening in exchange for marijuana and that he intended to sell them.

A subsequent laboratory test disclosed the pills to be caffeine and not "speed." Trial testimony offered by the State indicated that the pills were similar in appearance to other types of controlled dangerous substances, that undercover agents had purchased drugs or their "look-alike" non-narcotic counterparts which appeared very similar to the pills possessed by defendant and that reasonable persons would think the pills were controlled dangerous substances even though they were slightly different in appearance from the true narcotics. The prosecution witnesses also testified that they used the Physician's Desk Reference (PDR) to compare the pills seized from defendant with pictures of narcotics contained in this book and found that the pills resembled three types of controlled dangerous substances. During the course of their testimony, these witnesses utilized the PDR in describing the similarities and differences between the controlled dangerous substances and defendant's pills. Although the State did not move the PDR into evidence, at the conclusion of the defendant's case, defense counsel sought its admission. The trial court refused to admit this exhibit on the ground that defendant had not laid a proper foundation qualifying the evidence under an exception to the hearsay rule. A motion for a new trial based upon an alleged error in this ruling was denied as the court considered the refusal to admit the book had not created a potential for prejudice or injustice.

Defendant advances the following appellate arguments:

I. THE LOOK-ALIKE STATUTE VIOLATES BOTH THE STATE AND FEDERAL CONSTITUTION[S].

A. Introduction.

B. N.J.S.A. 24:21-19.1a(3) Is Unconstitutionally Vague.

C. N.J.S.A. 24:21-19.1a(3) Is Unconstitutionally Overbroad.

D. The Defendant Was Convicted With The Use Of An Unconstitutional Presumption.

II. SINCE A PROPER FOUNDATION WAS LAID, THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT REFUSED TO ALLOW THE PHYSICIAN'S DESK REFERENCE INTO EVIDENCE.

The so-called "look-alike drug" statute, N.J.S.A. 24:21-19.1, provides in pertinent part:

a. It is unlawful for any person to distribute or to possess or have under his control with intent to distribute any substance which is not a controlled dangerous substance:

(1) Upon the express or implied representation to the recipient that the substance is a controlled dangerous substance; or

(2) Upon the express or implied representation to the recipient that the substance is of such nature, appearance or effect that the recipient will be able to distribute or use the substance as a controlled dangerous substance; or

(3) Under circumstances which would lead a reasonable person to believe that the substance is a controlled dangerous substance.

Any of the following shall constitute prima facie evidence of such circumstances:

(a) The substance was packaged in a manner normally used for the unlawful distribution of controlled dangerous substances;

(b) The distribution or attempted distribution of the substance was accompanied by an exchange of or demand for money or other thing as consideration for the substance, and the value of the consideration exceeded the reasonable value of the substance;

(c) The physical appearance of the substance is substantially the same as that of a specific controlled dangerous substance.

Defendant's complaint as to the impermissible vagueness of subsection (a)(3) of the statute is premised on the assertion that this provision does not clearly and precisely define the prohibited criminal conduct. He questions the definiteness of a test based upon beliefs of a reasonable person and suggests that the vagueness of this standard presents an uncertainty as to the nature of the conduct prohibited by the statute. Thus, he posits that a reasonable person could under certain circumstances wrongly believe that non-narcotic pills, such as vitamin tablets, were controlled dangerous substances thereby subjecting the possessor of the harmless tablets to possible criminal sanctions. He also considers the challenged provision to be unconstitutionally overbroad as it allegedly reaches to behavior which is constitutionally protected. While not challenging the State's interest in prohibiting the sale of "look-alike" substances defendant claims the fulfillment of this interest does not require that the prohibition of the statute extend to the harmless possession of these substances. His final constitutional attack is directed to the statutory presumption which allegedly permits an irrational relationship between mere possession of substances which are substantially the same as controlled dangerous substances and illegal activity.

The void for vagueness doctrine is a well established procedural due process concept which requires that a penal statute define the criminal offense with sufficient definiteness that ordinary persons can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. While the focus is upon notice to citizens and arbitrary enforcement, a more important aspect of the doctrine is the requirement that the legislation establish minimal guidelines to govern its enforcement. Kolender v. Lawson, 461 U.S. 352, 357-358, 103 S.Ct. 1855, 1859, 75 L.Ed.2d 903, 909 (1983).

The doctrine's rationale was expressed in the following terms by the New Jersey Supreme Court in Town Tobacconist v. Kimmelman, 94 N.J. 85, 118, 462 A.2d 573 (1983):

We first consider whether the Act is facially vague. Clear and comprehensible legislation is a fundamental prerequisite of due process of law, especially where criminal responsibility is involved. Vague laws are unconstitutional even if they fail to touch constitutionally protected conduct, because unclear or incomprehensible legislation places both citizens and law enforcement officials in an untenable position. Vague laws deprive citizens of adequate notice of proscribed conduct, Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888, 890 (1939), and fail to provide officials with guidelines sufficient to prevent arbitrary and erratic enforcement. Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110, 115 (1972). In Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222, 227-28 (1972), the Supreme Court explained why vague laws are intolerable:

Vague laws offend several important...

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    • 1 Enero 2001
    ...be gleaned by reading statutes in pari materia, and by reviewing related sections as a whole."); see also State v. Sharkey, 204 N.J.Super. 192, 198, 497 A.2d 1291, 1294-95 (1985)("It is clear to us that persons of ordinary intelligence would understand this legislation to proscribe the dist......
  • Coalition of New Jersey Sportsmen, Inc. v. Whitman
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    • U.S. District Court — District of New Jersey
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    ...be gleaned by reading statutes in pari materia, and by reviewing related sections as a whole."); see also State v. Sharkey, 204 N.J.Super. 192, 198, 497 A.2d 1291, 1294-95 (1985) ("It is clear to us that persons of ordinary intelligence would understand this legislation to proscribe the dis......
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    ...conduct is proscribed. Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926); State v. Sharkey, 204 N.J.Super. 192, 497 A.2d 1291 (App.Div.1985). State v. Cameron, 100 N.J. 586, 498 A.2d 1217 (1985) addresses the applied vagueness question by stating [a] part......
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    ...75 L.Ed.2d 903, 909 (1983); see also Town Tobacconist v. Kimmelman, supra, 94 N.J. at 118, 462 A.2d 573; State v. Sharkey, 204 N.J.Super. 192, 199, 497 A.2d 1291 (App.Div.1985). We are concerned here with the latter, specifically, with vagueness that makes the jury's functioning unpredictab......
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