On certification to the Superior Court, Appellate Division, whose opinion is reported at 134 N.J. Super. 517 (1975).
For affirmance -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. For reversal -- None. Pashman, J., concurring in result.
The judgment is affirmed substantially for the reasons expressed in the opinion of the Appellate Division.
PASHMAN, J., concurring in result. While I concur in the majority's affirmance of defendant's conviction, I disagree
with much of the reasoning in the Appellate Division's opinion, State v. Ableman, 134 N.J. Super. 517 (1975), adopted by the Court today.
Unlike the Appellate Division, I do not conclude that the term "same act" in N.J.S.A. 24:21-*fn251 refers only to those acts expressly prohibited by Sections 19 through 22 of the statute. Id. at 520. See State v. Krell (Ableman), 125 N.J. Super. 457, 461 (Law Div. 1973). This interpretation accurately reflects the Court's approach to those provisions in the context of merger principles,*fn2 but it distorts the meaning of § 25. Under the Court's decisions construing the Controlled Dangerous Substances Act, N.J.S.A. 24:21-1 et seq., each stage in a single, continuous transaction culminating in distribution of an illegal substance may be punished as a separate crime. State v. Ruiz, 68 N.J. 54, 58 (1975); State v. Davis, 68 N.J. 69, 78 (1975); State v. Jester, 68 N.J. 87, 90 (1975). I dissented in those cases because I could discern no explicit legislative intent authorizing conviction and punishment for the separate offenses of distribution and possession with intent to distribute when a single sale was involved. State v. Ruiz, supra, 68 N.J. at 59-69; State v. Davis, supra, 68 N.J. at 86-87; State v. Jester, supra, 68 N.J. at 92-93. See also State v. Valentine,
69 N.J. 205, 212-216 (1976). I argued that, absent a clear declaration of legislative policy, judicial construction of the statute should be guided by the fundamental principle that a person should not be punished twice for the same offense. State v. Ruiz, supra, 68 N.J. at 66. While the majority found the policies underlying the double jeopardy clause inapplicable to the problem of merger and the task of determining whether the Legislature meant to punish distribution and possession to distribute as separate offenses, see State v. Davis, supra, 68 N.J. at 80, these considerations bear directly on the interpretation of § 25. As the State concedes, this provision was intended to give double jeopardy protection to an individual who has been prosecuted in another jurisdiction for an act which is also illegal under our statute.*fn3
Therefore, the Court must determine whether prosecution for distribution of hashish is barred under principles of double jeopardy, not whether distribution constitutes a different criminal act than possession with intent to distribute. The Appellate Division seemingly recognized this issue in pointing out that defendant's New Jersey prosecution after his conviction in federal court in New York would not be precluded under any of the various tests utilized to determine
the applicability of double jeopardy. Supra, 134 N.J. Super. at 520.*fn4 On the facts of this case, I agree with the Appellate Division's conclusion that this proceeding is not violative of the ban on multiple prosecution. However, I cannot agree that double jeopardy principles are coextensive with the merger principles applied in the Ruiz-Davis-Jester trilogy, and therefore would not rule out future contentions by other defendants that § 25 encompasses more than a particular criminal act prohibited by N.J.S.A. 24:21-19.
Initially, I note that the protection afforded by § 25 may be constitutionally compelled as well. The State argues that the "dual sovereignty" rule established by Bartkus v. Illinois, 359 U.S. 121, 79 S. Ct. 676, 3 L. Ed. 2d 684, reh. den. 360 U.S. 907, 79 S. Ct. 1283, 3 L. Ed. 2d 1258 (1959) and followed by this Court in State v. Cooper, 54 N.J. 330 (1969) makes § 25 the only obstacle to double prosecution for the same offense. Yet Bartkus may have been undermined by the application of the double ...