For affirmance in State v. Ruiz -- Chief Justice Hughes, Justices Sullivan and Clifford and Judge Kolovsky. For reversal -- Justice Pashman. For reversal in State v. Williams -- Chief Justice Hughes, Justices Sullivan and Clifford and Judge Kolovsky. For affirmance -- Justice Pashman. The opinion of the Court was delivered by Clifford, J. Pashman, J. dissenting.
[68 NJ Page 55] These consolidated cases present common questions of law, resolution of which is governed by the principles enunciated in State v. Davis, 68 N.J. 69 (1975), decided this day. The main issue in each case is whether the respective convictions for possession with intent to distribute heroin merged into the convictions for distribution thereof so as to require the possession-with-intent convictions to be vacated.
Defendant Ruiz was named in three separate indictments. The only one with which we are concerned charged that on June 13, 1972 Ruiz did unlawfully possess with intent to distribute (Count 1) and distribute (Count 2) heroin, contrary to N.J.S.A. 24:21-19(a)(1).
At trial Patrolman-Detective Botsko testified that on June 13, 1972 he was acting as an undercover agent for the Narcotics Squad of the Morris County Prosecutor's Office. In that capacity he and an informer approached a group of males standing around in a store area on the other side of South Essex Street in Dover. He was met halfway across the street by the defendant who shouted, as Botsko put it, that "he had the best dope on the street and him and another guy just copped [purchased] an ounce from New York." After some hastily begun, but unsuccessful, dickering as to what the revolver carried by the officer and initially eyed with suspicion by the group was worth in bags of heroin, Botsko asked how much money a pound bag would cost. The defendant replied $10. The detective then handed that amount to Ruiz, who left the scene and proceeded to an undisclosed location on a nearby street, returning about one minute later with a foil packet containing the white-powdered heroin. At that point Ruiz offered Botsko an additional four bags for the pistol but the officer refused. Defendant testified that he had never seen Botsko prior to the trial and denied selling him any heroin on June 13 or any other date. In affirming the convictions the Appellate Division, 127 N.J. Super. 350, 356 (1974), declared, inter alia, that the acts of possession with intent to distribute narcotics and the actual distribution thereof were distinct offenses and separately punishable. The case is here as of right, R. 2:2-1(a), by reason of a dissent which maintained that the possession with intent to sell the single bag or packet of heroin merged with distribution of the same bag.
The fact pattern in the Williams case is relatively indistinct from that in Ruiz. Williams was accused in a six-count indictment of possession of a controlled dangerous substance (heroin) with intent to distribute and with unlawful distribution on three distinct dates in May, 1972, in contravention of N.J.S.A. 24:21-19(a)(1). The State concedes that the bag of heroin which is the subject of the distribution on each occasion is the same packet of heroin on which conviction was sought and secured for possession with intent to distribute on the same date. Once again an undercover member of a narcotics team -- this time from the Monmouth County Prosecutor's Office -- was the principal witness for the State. Investigator McLemore testified he had been introduced to the defendant at her apartment by one Ross, who in turn disclosed to Williams that the investigator wanted to purchase some drugs. In return for a five-dollar bill, defendant passed McLemore a white glassine bag later determined to contain heroin. During the next two meetings, which occurred within a week of the first, similar "buys" transpired. Yvonne Williams testified as the only witness in her behalf and denied ever having seen McLemore prior to the courtroom proceedings. While she admitted knowing Ross during May of 1972, she insisted she had not seen him on any of the days in question.
The jury found the accused guilty on all six counts. Defendant was sentenced on January 12, 1973 to an indeterminate period in the Correctional Institution for Women at Clinton on each count, the sentences to run concurrently with a ten-year maximum imposed. Upon appeal, the defendant argued that since the offense of possession of a controlled dangerous substance with intent to distribute merged as a lesser included offense in a distribution count involving the same bag of heroin, conviction on the lesser charges should be overturned. Defendant also averred (1) that the six offenses actually constituted but one transaction,
thus mandating conviction on only a single count, and (2) that the indeterminate sentences imposed with a ten-year maximum were excessive. While affirming the trial court's determination on the last two points for reasons which we find sufficient and hereby adopt, the Appellate Division, 129 N.J. Super. 84 (1974), agreed with defendant's first contention and vacated the convictions for possession with intent to distribute. In his perceptive and illuminating dissent, which furnishes the basis for the appeal as of right to this Court, Judge Lynch concluded that the convictions should be affirmed.
Inasmuch as here, as in the companion case of State v. Davis, supra, there was no proof of possession of heroin other than that which was sold, defendants both argued that the convictions for possession with intent to distribute and distribution merge because one must necessarily possess the drug (with or without intent) in order to make distribution thereof.
But here again we are dealing with demonstrably distinguishable criminal offenses. State v. Davis, supra, 68 N.J. at 81-83 points up the differences between possession and distribution in terms of the stage of drug trafficking each represents and the time span characterizing each offense. So here we note that a charge of possession with intent to distribute in violation of N.J.S.A. 24:21-19(a)(1) seeks to condemn the transportation and placement of certain drug substances in the stream of illegal commerce, while an indictment for distribution looks to the final step in drug trafficking -- transfer to someone else. There is, too, the same absence of coincidence of proof in law between the two offenses as exists with respect to simple possession and distribution.
Nor does the "mere fleeting and shadowy" possession exception of State v. Booker, 86 N.J. Super. 175 (App. Div. 1965), apply here any more than in Davis. Both Ruiz and
Williams did business with relative strangers. Williams sold the undercover agent drugs on three occasions. Clearly neither Ruiz nor Williams obtained possession of the heroin only at the behest of the agent. See Laughter v. State, Miss., 241 So. 2d 641 (1970). Ruiz told the officer he had the "best dope" in Dover and had "just copped an ounce from New York," and thereafter tried to barter four packets of heroin for the detective's weapon. On each of the three occasions in question Williams, without any forewarning, supplied Detective McLemore with a white glassine bag of heroin which she had either on her person or in her apartment. With respect to both Ruiz and Williams the period of ...