On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Michels, Pressler and Trautwein.
Tried to a jury, defendant William Chapman was convicted of possession of heroin with intent to distribute (N.J.S.A. 24:21-19 a(1)), possession of heroin and cocaine (N.J.S.A. 24:21-20 a(1)), and possession in an automobile of a .22-caliber pistol without first having obtained the requisite permit (N.J.S.A. 2A:151-41). The trial judge merged defendant's conviction for possession of heroin and cocaine with his conviction for possession of heroin with intent to distribute and sentenced defendant to concurrent State Prison terms aggregating one to two years. The custodial sentences were suspended and defendant was placed on probation for two years. In addition, defendant was fined $500 on the possession offenses, the first $25 of which was assessed as a mandatory penalty payable to the Violent Crimes Compensation Board pursuant to N.J.S.A. 2C:43-3.1. Defendant was also assessed a $25 mandatory penalty on his conviction for unlawfully possessing a pistol. He appeals.
Defendant seeks a reversal of his convictions and a remand for a new trial or, alternatively, a reversal of the $25 penalties
payable to the Violent Crimes Compensation Board on the following grounds set forth in his brief:
POINT I COURT ERRED IN ALLOWING BOTH DEFENDANTS TO BE REPRESENTED BY SAME COUNSEL AT MOTION TO SUPPRESS WITHOUT PROPER WAIVER.
POINT II THE COURT ERRED IN DENYING THE MOTION TO SUPPRESS.
POINT III THE TRIAL COURT ERRED IN IMPOSING A FINE PAYABLE TO THE VIOLENT CRIMES COMPENSATION BOARD.
POINT IV THE COURT ERRED IN ALLOWING FRANK KELAHER TO TESTIFY AS AN EXPERT WITNESS.
We have carefully considered these contentions and all of the arguments advanced by defendant in support of them and find, with the sole exception of the argument concerning the imposition of the mandatory penalties (Point III, supra), that they are clearly without merit. R. 2:11-3(e)(2).
Defendant challenges as unconstitutional ex post facto legislation the imposition of the "mandatory" fines of $25 pursuant to N.J.S.A. 2C:43-3.1 a(2). He contends that the mandatory $25 penalty, which is imposed upon any person convicted of any crime not resulting in the injury or death of another person, was not applicable to him, because the offenses involved were committed prior to September 1, 1979, the effective date of the New Jersey Code of Criminal Justice. See N.J.S.A. 2C:98-4. The State's response, which is less than candid, is that defendant was fined for possession of heroin with intent to distribute under N.J.S.A. 24:21-19 a(1), which permits the imposition of a fine of not more than $25,000, and for possession of a pistol under N.J.S.A. 2A:151-41, which is a high misdemeanor and therefore punishable by a fine of not more than $2,000. See N.J.S.A. 2A:85-6. This argument is not borne out by the statements made by the trial judge at sentencing. On the contrary, it is clear from the sentencing transcript that the trial judge felt ...