For affirmance (Indictment No. 1039-71) and reversal (Indictment No. 1100-71) -- Chief Justice Hughes, Justices Mountain, Sullivan and Clifford and Judge Conford. For reversal (Indictment No. 1039-71) and affirmance (Indictment No. 1100-71) -- Justice Pashman. Pashman, J. (dissenting).
Defendant was found guilty after jury trial on all counts contained in seven separate indictments returned by a Monmouth County Grand Jury. Our attention centers on the charges set forth in two of those indictments and particularly on the problem of whether there should be merger of the convictions obtained thereon.
Indictment No. 1039-71 alleged in one count that on November 8, 1971, defendant possessed heroin with intent to
distribute it, and in a second count that on the same date defendant did distribute heroin to one Robert McCue, both in violation of N.J.S.A. 24:21-19(a)(1). A separate indictment, No. 1100-71, charged in the first count that on November 23, 1971, defendant possessed heroin with intent to distribute the same; and, in the second count, that on the same date, and offensive to the provisions of N.J.S.A. 2A:85-14, he aided and abetted one Bobby Sheard in the distribution of heroin to the same Robert McCue as is mentioned in the previous indictment.
The Appellate Division, in unreported opinions which resolved a number of issues in addition to the merger question, affirmed the judgments of conviction on the possession-with-intent-to-distribute-and-distribution case, holding there was no merger of those offenses; but in the second case that court vacated the conviction for possession with intent to distribute and the sentence imposed thereon, reasoning that that offense merged with the conviction for aiding and abetting in the distribution of heroin. Both the defendant's petition for certification in No. 1039-71 and the State's cross-petition for certification in No. 1100-71 were granted, 65 N.J. 578 (1974), limited however to the merger issues. We consolidated the appeals on motion of the defendant.
While these consolidated appeals were pending, the Court heard oral argument in a trilogy of cases posing issues closely related to those now before us, State v. Ruiz, 68 N.J. 54 (1975); State v. Davis, 68 N.J. 69 (1975); and State v. Jester, 68 N.J. 87 (1975). Counsel herein, recognizing the identity of questions presented here with those in the previously argued cases, therefore sought waiver of oral argument in these appeals, which we granted.
To support the charges in Indictment No. 1039-71, possession with intent to distribute and distribution of a controlled dangerous substance, the State relied essentially upon
testimony of Trooper Robert McCue, an undercover agent for the Narcotics Bureau of the New Jersey State Police. On November 8, 1971, while in Red Bank, McCue met the defendant whom he had encountered previously, and their conversation turned to drugs. After some preliminary discussion McCue agreed to purchase "one dime" (a $10 bag of heroin). Valentine "took out several glassine bags which were wrapped with a rubber band and pulled one of the bags out of the stack and handed it" to McCue, who paid defendant with a $10 bill. McCue then returned to the State Police Barracks where the evidence was marked, subsequently analyzed, and determined to be heroin. At trial the defendant denied ever having seen McCue before and denied the possession or sale of any heroin. The jury returned a verdict of guilty on each count. Defendant was sentenced to two concurrent terms of 5 to 7 years to run consecutively to those imposed under another indictment.
At the trial on Indictment No. 1100-71, charging defendant in separate counts with possession with intent to distribute a controlled dangerous substance and aiding and abetting in the distribution of a controlled dangerous substance, Trooper McCue was again the principal witness. He testified that on November 23, 1971 he met with one Bobby Sheard in the Trooper's undercover automobile. Sheard stated that he could get "dimes" for McCue, who requested one bag.
At this point a white Cadillac driven by defendant pulled up alongside of McCue's car. In compliance with Sheard's request McCue gave him a $10 bill, whereupon Sheard alighted from McCue's car, made his way to the passenger side of the Cadillac and reached through the window into that car. Defendant handed something to Sheard who in turn immediately handed one glassine bag to McCue. Sheard then entered the Cadillac and he and the defendant drove off together. The substance in the glassine bag was later determined to be heroin. Defendant denied any participation in this transaction as did Sheard, even though the
latter had previously pleaded guilty to the charge of distribution to McCue ...