For affirmance -- Chief Justice Hughes, Justices Sullivan and Clifford and Judge Conford. For reversal -- Justice Pashman. The opinion of the Court was delivered by Clifford, J. Pashman, J. (dissenting).
This last case in the trilogy of opinions handed down this day (see State v. Davis, 68 N.J. 69 (1975), and State v. Ruiz, 68 N.J. 54 (1975)), dealing with the problem of merger and drug-related offenses set forth in a multi-count indictment, began with an indictment containing one count for possession of heroin with intent to distribute and a second count for unlawful distribution thereof. The judgment of conviction after a jury trial was affirmed by the Appellate Division in an unreported opinion. We granted certification, 65 N.J. 571 (1974), to review the only issue presented by defendant in his petition, namely, that the convictions merged because (a) they arose out of a "single transaction," and (b) possession with intent to distribute is a lesser included offense in the crime of distribution.
Here, as in the companion cases, the basic information was assembled by an undercover police officer, one Detective McCue. Accompanied by an informer, McCue was introduced to defendant by another person from whom the officer had previously purchased drugs. McCue testified that Jester asked him if he wished to buy any "good dope" (heroin), in response to which McCue said that two bags would be enough. The defendant, according to McCue's testimony, "took several
glassine bags from the inside of a hat he was wearing and he produced two of them to me," for which McCue paid defendant $20. Laboratory analysis later revealed that the substance in the two bags purchased was heroin. Defendant denied ever having seen McCue prior to the trial and denied the possession or sale of any heroin.
Again, as in State v. Davis, supra, and State v. Ruiz, supra, we conclude that under these facts the offenses do not merge. Possession with intent to distribute and distribution are separate stages in a proscribed course of conduct. Here, we are confronted with a defendant dealing with a relative stranger, having obtained the drugs other than at the officer's specific instance. Jester was walking around with the heroin in his hat and, after initiating the transaction, readily furnished the glassine bags from his person. His intent to distribute the heroin which he was directly proved to have possessed was manifest, and the possession itself was inferentially for a substantial period of time and not merely "fleeting and shadowy." See State v. Booker, 86 N.J. Super. 175 (App. Div. 1965).
Furthermore, and as an alternative basis upon which our decision can be rested, there is in this case an additional feature not present in the companion cases: here the heroin which is the subject of each count against defendant is distinct. See State v. Lowell, 253 So. 2d 741 (Fla. App. 1971). Evidence supporting this is found in that part of McCue's testimony which indicates that Jester, a non-addict, sold only two of the "several" bags he took from his hat. Defendant's argument that this proof is deficient because the unsold residue was never tested or otherwise conclusively established to have been heroin misconceives the law. As Judge (now Chief Judge) Kaufman observed in United States v. Agueci, 310 F.2d 817, 828 (2d Cir. 1962):
[T]he existence of and dealing with narcotics may be proved by circumstantial evidence; there need be no sample placed before the jury, nor need there be testimony by qualified chemists as long as
the evidence furnished ground for inferring that the material in question was narcotics.
Here the two packets which defendant sold -- and which tested positively for heroin -- were taken from among the several in his hat apparently at random. There is no suggestion that any care or scrutiny was employed in the selection process. If a random sample from the bulk is obtained and if that sample tests positively for heroin, that is sufficient to support the conclusion that the unsold residue is of the identical substance, absent any evidence to the contrary. Cf. State v. Pipkin, 101 N.J. Super. 598 (App. Div.), certif. den., 52 N.J. 484 (1968), cert. den., 393 U.S. 1042, 89 S. Ct. 668, 21 L. Ed. 2d 590 (1969). And, in light of the random selection from the bulk, the total quantity of "goods" possessed, and the defendant's manifest willingness to sell to a relative stranger, there was sufficient evidence to support a jury determination of possession with intent to distribute a controlled dangerous substance in packets not the same as those which were the subject matter of the distribution charge. Cf. State v. Grayton, 163 Conn. 104, 302 A.2d 246, cert. den., 409 U.S. 1045, 93 S. Ct. 542, 34 L. Ed. 2d 495 (1972); Mack v. State, Del. Supr., 312 A.2d 319 (1973).
On either theory possession with intent to distribute and distribution are not single and identic. The sale to this buyer occurred at the specific moment money passed in exchange for the two foil packets. On the other hand possession with intent to distribute was a continuous act which tainted those two bags and the several glassine bags over and beyond the two actually sold, began (inferentially) as soon as possession in fact was obtained, and would have ended with transfer to not just McCue but to anyone else. Neither the ...