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State v. Hernandez

Decided: May 12, 1978.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
FRANCISCO HERNANDEZ AND WALTER RUTKOWSKI, DEFENDANTS-RESPONDENTS



On appeal from the Superior Court, Law Division, Hudson County.

Matthews, Crane and Antell. Crane, J.A.D. (dissenting).

Per Curiam

As in State v. Clark , 151 N.J. Super. 529 (App. Div. 1977), the sole issue here is whether the State must allege an overt act in furtherance of the object of a conspiracy to violate the drug laws in an indictment brought under N.J.S.A. 24:21-24(a). The trial judge held such pleading necessary and dismissed the conspiracy count against the named defendants for failure to allege overt acts. The State did not move to amend the indictment.

N.J.S.A. 24:21-24(a) provides:

Any person who attempts, endeavors or conspires to commit any offense defined in this act is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the endeavor of conspiracy.

Count 1 of the indictment here involved paraphrased the

statute and charged all the defendants with a conspiracy.*fn1 The second and third counts charged two codefendants (not parties to this appeal) with possession, and possession with intent to distribute.

Prior to the passage in 1970 of the New Jersey Controlled Dangerous Substances Act, N.J.S.A. 24:21-1 et seq. , of which the statute in question is part, a conspiracy to violate the drug laws was prosecuted under N.J.S.A. 2A:98-1.*fn2 State v. Dennis , 43 N.J. 418, 423 (1964). Under that statute the State must allege one or more overt acts to make conspiracy an indictable offense, N.J.S.A. 2A:98-2, and prove at least one of the overt acts for a conviction. State v. Malaspina , 120 N.J. Super. 26, 29 (App. Div. 1972), certif. den. 62 N.J. 75 (1972); State v. Hemmendinger ,

100 N.J.L. 234, 237 (Sup. Ct. 1924), aff'd o.b. 101 N.J.L. 417 (E. & A. 1925); State v. Dixon , 133 N.J.L. 348, 349 (Sup. Ct. 1945).

The trial judge found that N.J.S.A. 24:21-24(a) changed the penalty for conspiring to violate the narcotic laws from a high misdemeanor to the particular maximum penalty prescribed for the offense which was the object of the conspiracy, and did not affect the provisions of N.J.S.A. 2A:98-2 requiring an overt act. Relying on State v. Malaspina , above, he held that absent allegation of an overt act the indictment was deficient and must be dismissed.

The State argues that N.J.S.A. 24:21-24(a) is a separate distinct offense from that established under N.J.S.A. 2A:98-1 and, therefore, that the provisions of N.J.S.A. 2A:98-2 do not apply. Thus, in the absence of any express language, conspiracy under the statute is on "the common law ...


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