On Appeal from Superior Court, Law Division, Morris County.
Morton I. Greenberg, O'Brien and Gaynor.
We affirm the denial of defendant's motion for a dismissal of the count of the indictment charging him with distribution of more than one ounce of cocaine, of which at least 3.5 grams were pure freebase cocaine, in violation of N.J.S.A. 24:21-19 and N.J.S.A. 24:21-19(b)(2), substantially for the reasons set forth in the comprehensive letter opinion of Judge Egan. As the sole issue on appeal is defendant's claim that the classification of cocaine as a Schedule II narcotic under the New Jersey Controlled Dangerous Substances Act, N.J.S.A. 24:21-1 et seq. violates his constitutional rights of equal protection and due process, we include herein the following pertinent part of Judge Egan's unpublished opinion dated February 11, 1982 rejecting this contention:
"The constitutional attack is based on the assertion that (1) the quantitative distinction in N.J.S.A. 24:21-19b(2) between more than an ounce of cocaine and less than an ounce, and the qualitative distinction between 3.5 grams of the 'pure free base' drug and less than 3.5 grams, is arbitrary and capricious in violation of the United States and New Jersey constitutional guarantees of equal protection and due process; (2) the statute is unconstitutionally vague because it fails to define a 'pure free base' Schedule I or II narcotic drug; (3) the statutory penalty of up to life imprisonment violates the United States and New Jersey constitutional guarantee against cruel and unusual punishment; (4) the legislative classification of cocaine as a 'narcotic' drug is erroneous and therefore violative of the constitutional guarantee of equal protection and due process.
"In order to provide a factual platform for their argument as to the erroneous classification of cocaine as a narcotic the court granted defendants' request for an evidentiary hearing on that issue. At that hearing, Ronald K. Siegel, Ph.D., an Associate Professor in the Department of Psychiatry and Biobehavioral Sciences in the University of California at Los Angeles School
of Medicine testified for the defense. Charles Tindall, Ph.D., of the Forensic Science Bureau of the New Jersey State Police testified for the State.
"To summarize, Dr. Siegel's opinion was that cocaine use absolutely should not be legalized or decriminalized, but that it should be reclassified as a Schedule III drug rather than Schedule II. He stated that cocaine should be classified with the amphetamines . . . .
"The State's expert witness was Charles Tindall, an aide to the Bureau Chief of the Forensic Science Bureau of the New Jersey State Police with a Ph.D. in chemistry from Ohio State University. Dr. Tindall did not go into the historical detail of the discovery and development of cocaine as Dr. Siegal had, nor the number of users, the classification of users, the effect of its use or the relationship between its use and the commission of other crimes. He did say he was familiar with our Controlled Dangerous Substances Act and its history and he said that the act is regularly updated from time to time with regard to the inclusion of drugs and their classification and reclassification within the five schedules of the act. This, he said, is primarily done by the Federal Government whose law we parallel. This is done on the basis of records maintained and reviewed by the Federal Drug Enforcement Agency concerning the potential for drug abuse and the need for rescheduling the various drugs. He stated he was familiar with the statutory criteria for the classification of Schedule II drugs and said that the criterion of 'high potential for abuse' was based on an analysis of how often the drug appears in nonmedical use.
"With regard to the issue of how a narcotic is defined, he did not basically disagree with Dr. Siegel. He would not say there is a chemical definition, but he confirmed that biologically a narcotic is a drug derived from the opium poppy and medically it is a drug derived from the opium poppy which produces narcosis. He agreed that cocaine does not fit within either of
those definitions, but he added that our New Jersey Controlled Dangerous Substances Act contains a specific legal definition which, by its terms, includes cocaine. He further confirmed that our New Jersey act originated from the Harrison Act of 1914.
"From all of this, it can readily be found and stated as a fact that cocaine is not botanically, pharmacologically or medically a narcotic. If that were the extent of the issue before the court, the analysis and inquiry would end here. The legal issue, however, goes further. Aside from whether the classification of cocaine as a 'narcotic drug' in the definitions in N.J.S.A. 24:21-2 was a historical ...