The Appellate Division on November 14, 2016 held that Judge Marilyn C. Clark, J.S.C. was correct in ruling that N.J.S.A. 2C:35-5(c) does not permit the aggregation of two different types of drugs, which in this case was Heroin and Cocaine for the purposes of charging the defendant with a first degree crime.
Judge Clarke held at the trial level, which the Appellate Division affirmed that under the plain language of the statute and under the doctrine of lenity, the language of N.J.S.A. 2C:35-5(a)(1) states that it is illegal to “manufacture, distribute or dispense, a controlled dangerous substance.” The key word being substance, not the plural, substances, as the prosecutor argued to the court. Judge Clark did however ruled that aggregation is permitted with the same substance, sold on different dates to reach the first degree level. Further, because possession with intent to distribute different substances do not merge is further support that Title 35 controlled dangerous substance crimes, are crimes that must be dealt with separately. State v. Jordan, 235 N.J. Super. 517, 520 (App. Div. 1989).
In joint prosecution for co-defendants, the jury must also decide under N.J.S.A. 2C:35-5(c), the court noted: “Where the degree of the offense for violation of this Section depends on the quantity of the substance, the Quantity involved shall be determined by the trier of fact... in determining the grade of the offense, whether distribution or dispensing is to the same person or several persons.”
This is a good decision for the defense bar because it interprets an area of the New Jersey Drug Law which is often misinterpreted.
Quote of the Day: “God offers to every mind its choice between truth and repose. Those who choose repose receive release from the mandates of truth; but it is only temporary. No man or woman can reject truth forever. Those who choose truth, on the other hand, have no rest—and so they continue to fight for justice.” Ralph Waldo Emerson.
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