Collester, Lynch and Michels. The opinion of the court was delivered by Collester, P.J.A.D. Lynch, J.A.D. (concurring in part and dissenting in part).
[129 NJSuper Page 85] Defendant was tried to a jury and found guilty on a six-count indictment which charged that
on three different days she unlawfully distributed heroin and unlawfully possessed the heroin with intent to distribute it. She was sentenced to six concurrent indeterminate terms with a maximum of ten years at the New Jersey Correctional Institution for Women at Clinton.
On appeal defendant first contends that she should not have been convicted of both the possession of heroin with intent to sell and the sale of the heroin which were part of one criminal transaction. We agree. The State's proofs showed that on each of the three days an undercover narcotics agent went to defendant's apartment and purchased one bag of heroin for $5. There was no evidence that defendant had possession of any heroin other than that which she sold to the agent. Therefore, under the facts of this case possession of the heroin with intent to distribute, while a crime in itself, was also an essential element of the unlawful distribution of which defendant was convicted and must be considered an included offense. She cannot be convicted of both. State v. Wilkinson, 126 N.J. Super. 553 (App. Div. 1973), certif. denied 63 N.J. 562 (1973). But see, State v. Ruiz, 127 N.J. Super. 350 (App. Div. 1974).
Defendant next urges that the offenses of which she was convicted constituted one continuing transaction and therefore she should have been convicted on only one charge. We find no merit to this contention. There was no overall offense here, but three separate offenses on three different dates, and the State could prosecute defendant on each. See State v. Juliano, 52 N.J. 232, 235 (1968) and State v. Brunetti, 114 N.J. Super. 57, 62 (App. Div. 1971).
Lastly, defendant argues that the sentences imposed were excessive. The trial judge is vested with broad discretion in the imposition of a sentence so long as it is within statutory bounds. Before we may interfere there must be a clear showing of an abuse of that discretion. State v. Tyson, 43 N.J. 411 (1964), cert. den. 380 U.S. 987, 85 S. Ct. 1359, 14 L. Ed. 2d 279 (1965). In light of the circumstances of defendant's repeated sales of heroin we conclude that the
sentences imposed for such offenses were not manifestly excessive or unduly punitive and there was no abuse of judicial discretion.
The convictions for possession of heroin with intent to distribute it are vacated. The convictions and sentences for unlawful distribution of heroin are affirmed.
LYNCH, J.A.D. (concurring in part and dissenting in part): I respectfully dissent from that phase of the court's opinion which holds, without using the label, that the offense of possession with intent to distribute the heroin "merges" with distribution of the drug. Thus I join in the result reached by the majority in State v. Ruiz, 127 N.J. Super. 350 (App. Div. 1974). However, the facts here are somewhat different from those in Ruiz and, since I think the issue is of sufficient importance, I add my own reasons for the position I take.
The reasons for my dissent are both factual and legal. Factually, defendant's possession of the heroin was not "fleeting and shadowy in its nature," cf. State v. Booker, 86 N.J. Super. 175, 178 (App. Div. 1965), i.e. instanced only at the time of the three sales on May 2, May 3 and May 8, 1972. Rather, the inference is inescapable that defendant took the three bags of heroin from a "stock in trade." Cf. State v. Vallejos, 89 Ariz. 76, 358 P. 2d 178 (Sup. Ct. 1960); Laughter v. State, 241 So. 2 d 641 (Miss. Sup. Ct. 1970). Therefore the possession with intent to distribute was separate and distinct from the sales, and constituted separate crimes. State v. Booker, supra, 86 N.J. Super. at 178, and other cases to be cited below.
The "legal" reason for this dissent is that, in my view, the doctrine of "merger," especially in a case involving statutory offenses, such as separate steps in the drug traffic, deserves reexamination so as to carry out the Legislature's efforts to punish each step in that process. "Merger" has been a mechanism employed to avoid double jeopardy. Since the former emphasis on "technisms" in prohibiting double
jeopardy has been replaced by considerations of "underlying policies," "fairness" and "fulfillment of reasonable expectations" (State v. Currie, 41 N.J. 531, 539 (1964); State v. Mills, 51 N.J. 277, 289, cert. den. 393 U.S. 832, 89 S. Ct. 105, 21 L. Ed. 2d 104 (1968); State v. Redinger, 64 N.J. 41 (1974)). I conceive we are free to reexamine the problem. Applying those standards, I suggest that the statutory offenses herein, as separate steps in the traffic of drugs, are separate offenses, and prosecution for each does not violate the prohibition against double jeopardy.
Factually, the evidence indicates that on May 2, 1972, at 6:20 P.M., one Ross took an undercover narcotic investigator, George C. McLemore, to defendant's apartment, introduced him to defendant and told her that McLemore wanted to buy some drugs. McLemore gave a $5 bill to Ross who, in turn, gave it to defendant. Defendant gave Ross a white glassine bag which ultimately proved to contain heroin. On the next day, May 3, 1972, at 8:50 P.M., McLemore went to defendant's apartment by himself. He told defendant that he "came to cop" and put a $5 bill in her hand. She gave him a glassine bag which also later proved to contain heroin. Five days later, on May 8, 1972, at 12:15 P.M., McLemore again went to defendant's apartment and procured another bag of heroin for $5 from defendant. In each instance defendant had the narcotics on her person when she delivered them to McLemore.
In State v. Booker, supra, it was held that where, in three separate episodes, defendant had narcotics on his person when he offered them for sale, the possession antedated the sale, was separate and distinct from the sale, and was a separate crime. 86 N.J. Super. at 178. So here, a clear inference could be drawn that before, and after, the first and second sales, before the third, and between the three separate episodes, defendant had possession of the heroin entirely
apart from the time and incident of each specific sale. Therefore such possession was separate and apart from the sales and the offenses of (a) possession with intent to distribute, and (b) distribution, were separate offenses.
I am mindful of several California cases which hold possession and sale of the same drug to be "the same offense" and therefore conviction as separate offenses is impermissible, e.g. People v. Castiel, 153 Cal. App. 2 d 653, 315 P. 2d 79 (D. Ct. App. 1957); People v. Roberts, 40 Cal. 2 d 483, 254 P. 2d 501 (Sup. Ct. 1953), and People v. Branch, 119 Cal. App. 2 d 490, 260 P. 2d 27 (D. Ct. App. 1953). But California has a statute which we do not have, Cal. Penal Code, § 654 at 1872, which provides in part:
An act or omission which is made punishable in different ways by different provisions of this Code may be punished under either of such provisions, but in no case can it be punished under more than one; an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other.
Arizona has a similar statute, and in State v. Vallejos, supra, where defendant was convicted of possession and sale of the same marijuana, the Supreme Court of that state determined to follow the California cases insofar as it considered their reasoning was sound. It said:
We first consider the sentencing for possession in addition to sale. The California cases are numerous and admit of some dispute. What does seem clear is that where the possession was obtained for the purpose of the particular sale, it will be considered one transaction permitting but one conviction and sentence. People v. Branch, 119 Cal. App. 2d 490, 260 P. 2d 27, 31. In that case the court said:
"By this section, it is indispensable in order to impose separate punishments that there be evidence of separate and divisible acts that are not incidental to each other. In determining this question the courts have refused to dissect the evidence minutely in an attempt to find separate offenses, but, on the contrary, have held that a broad transactional approach should be made."
We consider this view sound but find its application far from simple. In each case the facts must be examined to determine whether the transactional test has been met. Thus where it appears that the defendant simply ...