On appeal from the Superior Court, Appellate Division.
For reversal and dismissal -- Chief Justice Vanderbilt, and Justices Oliphant, Burling and Weintraub. For affirmance -- Justices Wachenfeld and Jacobs. The opinion of the court was delivered by Oliphant, J.
The defendant-appellant was tried and convicted in the Municipal Court of Newark on February 15, 1956, on two separate complaints, each charging a violation of the Disorderly Persons Act. Complaint No. 9037 charged that on January 22, 1956 the defendant did have in his possession a hypodermic needle in violation of N.J.S. 2 A:170-77.1. Complaint No. 9024 charged that the defendant "did use a narcotic drug, to wit heroin, as defined in Article I of Chap. 18 of Title 24 of the Revised Statutes * * * in violation of N.J.S. 2 A:170-8." The charges in the two complaints were tried together by consent. The court suspended the sentence on the conviction for possession of the hypodermic needle and on the conviction as a narcotics user sentenced the defendant to the county penitentiary for one year, but suspended the sentence and placed him on probation for one year.
He appealed his convictions to the Essex County Court and that court convicted him on the record made below on both charges and imposed the same sentences as the municipal court had imposed.
The defendant then appealed to the Appellate Division, claiming that the municipal court erred in not dismissing both complaints at the close of the State's case, and that the County Court erred in not dismissing both complaints for insufficient evidence. The Appellate Division affirmed the convictions on both the complaints, with a dissent filed on the conviction of the defendant on the charge the defendant did unlawfully use a narcotic drug, to wit heroin.
The appellant appealed to this court and has argued the same propositions he argued before the Appellate Division
as to both convictions, assuming that such was his right by virtue of the dissent in the Appellate Division. Art. VI, Sec. V, par. 1(b), Constitution 1947, and R.R. 1:2-1(b) permit an appeal to this court as a matter of right where there is a dissent in the Appellate Division. But where two separate judgments are consolidated and argued on appeal and both affirmed, the fact that there is a dissent only as to the affirmance of one of the judgments does not give the appellant the right to appeal to this court as a matter of right from the other judgment of affirmance.
The conviction and appeal of the defendant on complaint No. 9037 remained a separate and distinct criminal charge, judgment and cause for the purposes of his appeal as of right under the Constitution and the rule. When the conviction on this complaint was unanimously affirmed in the Appellate Division his appeal as of right was exhausted. He could appeal from such affirmance to this court only on certification granted under R.R. 1:10. Cf. Pangborn v. Central R.R. Co. of N.J., 18 N.J. 84, 91 (1955).
For these reasons the appeal from the affirmance by the Appellate Division of the conviction for the possession of a hypodermic needle on complaint No. 9037 will be dismissed with the observation that we examined the record and found the conviction supported by competent evidence. State v. Rogers, 19 N.J. 218 (1955); State v. Kollarik, 22 N.J. 558 (1956).
Turning to the affirmance of the conviction of the defendant as a narcotic user, the complaint in that cause alleges a violation of N.J.S. 2 A:170-8, which provides:
"Any person who uses a narcotic drug, as defined in article 1 of chapter 18 of Title 24 of the Revised Statutes (Foods and Drugs), the uniform narcotic drug law, for a purpose other than the treatment of sickness or injury as prescribed or administered by a person duly authorized ...