Leonard, Allcorn and Crahay. Allcorn, J.A.D. (dissenting, in part).
In three indictments defendant was charged with a variety of drug offenses allegedly committed on separate dates. Following his convictions multiple sentences were imposed aggregating a term of not less than five nor more than seven years in New Jersey State Prison. His appeals therefrom are addressed to the convictions in part and the sentences in their totality and, on his motion, we have consolidated them. They will be treated separately since different arguments are addressed to each.
1. Indictment 722-71-M in its first count charged that on April 6, 1972 defendant possessed heroin, contrary to N.J.S.A. 24:21-20. The second count charged that on the same day defendant possessed heroin with intent to distribute it, contrary to N.J.S.A. 24:21-19, subd. a(1). Following a nonjury trial, defendant was found guilty of both offenses and sentenced on each count to concurrent three to five year terms in New Jersey State Prison. Defendant's motion urging essentially that both counts involved a single offense was denied, the trial court being of the opinion that the Legislature intended that the offenses were distinct and separately punishable.
The sole point of appeal addressed to the convictions under this indictment is that the court erred by imposing separate sentences. In a word, defendant argues that the charges here merged and we agree.
The record reflects that the proofs were sufficient to support the conviction of possession of heroin with intent to distribute it. While possession of heroin is a crime in and of itself, in the prosecution of this indictment, it was an essential
element of the charge of possession with intent to distribute and must therefore be treated as an included offense. Defendant may not stand convicted of both charges. State v. Thomas, 118 N.J. Super. 377 (App. Div. 1972), certif. den. 60 N.J. 513 (1972); State v. Hill, 44 N.J. Super. 110 (App. Div. 1957). Accordingly, the conviction on the first count of Indictment No. 722-71-M and the sentence imposed thereon are hereby vacated. The judgment of conviction on the second count is affirmed.
2. Indictment No. 729-71-M charged in the first count that on June 13, 1972 defendant possessed heroin with intent to distribute it contrary to N.J.S.A. 24:21-19, subd. a(1) and in the second count that on the same day he distributed heroin contrary to N.J.S.A. 24:21-19, subd. a(1).
This indictment was tried to a jury which found defendant guilty of both counts. He was sentenced therefor on the first count to not less than three nor more than five years in New Jersey State Prison and on the second count to not less than five nor more than seven years. It was ordered that the terms were to be served concurrently with each other and also with the sentences imposed on Indictment No. 722-71-M.
Originally, the only point of appeal directed to this indictment was that the trial court erred in not granting defendant's motion for a mistrial generated by allegedly improper comments by the prosecutor during his summation. Thereafter by reply brief (the point was not raised below) defendant argues that his possession conviction merged into the conviction for distribution and should be vacated.
On summation the prosecutor alluding to the heroin which had been marked into evidence, invited the jury's attention to the destructive character of the drug -- "* * * cute little package * * * incredible how much destruction in that little package." A defense objection was interposed and the statement was withdrawn. Thereafter, reference was again made to the "little package" -- "this little baby" and
its potential. At the conclusion of the State's summation, defense counsel moved for a mistrial. The motion was denied, and we think properly. The allowance of mistrials resides in the discretion of trial courts and should be granted only where manifest injustice looms. State v. DiRienzo, 53 N.J. 360, 383 (1969). Our review of the challenged remarks satisfies us that while they were better left unsaid (again we have an instance of a prosecutor's zeal overriding his responsibility, State v. Farrell, 61 N.J. 99, 104 (1972)), but we do not find that in context they were of a quality which constituted meaningful prejudice to defendant. The trial judge in his final instructions to the jury was meticulous and vigorous in charging them to disregard the allegedly offensive comments. He stated --
Now, there were certain statements made in the closing statement by the Prosecutor with respect to the potential or the effects of heroin. I am instructing you to disregard them completely. That was not part of the evidence in this case. It is not something for you to consider at all. You are concerned only with the two charges that are brought against the defendant and not of the potential effects or the effects that heroin has, and I very strongly tell you to completely disregard any of those statements which dealt with the potential or the effects of heroin.
We are satisfied that the cited instruction effectively eradicated whatever prejudicial impact the prosecutor's remarks may have generated. State v. Knight, 63 N.J. 187 (1973). Whatever prejudice may have resulted from the remarks themselves or which may have remained after the court's instruction was not in our view of a quality to warrant reversal. Here, there was ample proof of defendant's guilt. State v. LaPorte, 62 N.J. 312 (1973).
We need not consider whether defendant's argument on the merger of offenses is timely since we are satisfied that on the record here the possession of heroin charge was separate and distinct from the distribution charge and, as such, separately punishable.
The record reflects that on the night of the offense, one Botsko -- a police officer -- was engaged in an undercover narcotics mission. Accompanied by an informer and attired in a manner appropriate to the milieu he was entering, he was approached by defendant on a public street. Defendant claimed that he had the "best dope" and that he and another had "just copped an ounce from New York." Others on the scene noticed that Botsko was carrying an automatic weapon in his pants. Botsko was apprehensive that the weapon might be a giveaway that he was a police officer. To avoid compromising his cover he removed the weapon and inquired as to how much dope might be procured for it. Botsko testified that defendant stated he would give four "bags" in exchange for the weapon. Botsko countered that he would want seven or eight bags and went on to inquire of defendant as to the cost of a single bag. Defendant stated the price to be ten dollars. Botsko gave defendant ten dollars whereupon defendant left the scene, returning in about one minute ...