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State v. Sharkey

Decided: September 11, 1985.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
TERENCE W. SHARKEY, DEFENDANT-APPELLANT



On appeal from Superior Court of New Jersey, Law Division, Morris County.

Simpson and Gaynor. The opinion of the court was delivered by Gaynor, J.A.D.

Gaynor

In this case, defendant challenges the constitutionality of the "look-alike drug" statute, N.J.S.A. 24:21-19.1 et seq., on the grounds of its alleged vagueness, overbreadth and creation of an irrational presumption. We disagree with these attacks and find that the statute does not violate any constitutional requirement. Furthermore, we question defendant's standing to assert these statutory defects generally in view of the circumstances surrounding the application of the statute to his conduct. We are also unpersuaded that the trial court committed reversible error in excluding an exhibit proffered by defendant. Accordingly, the judgment of conviction is affirmed.

The facts giving rise to defendant's arrest and conviction of possession of look-alike drugs with intent to distribute are not in dispute. On October 6, 1982 at approximately 2:20 a.m., officers on patrol in Boonton, N.J. observed a vehicle being operated in an erratic manner. After stopping the vehicle and subjecting the driver to certain field tests for sobriety, the driver was arrested for operating the vehicle while intoxicated. As defendant, who had been a passenger in the vehicle, got out in response to an officer's request, two white capsules fell to the ground. A white plastic bag partially hanging out of defendant's pants pocket was then seized by the officers and found to contain some 200 similar capsules. By virtue of their size and shape, the officers believed the capsules to possibly contain a controlled dangerous substance and, based on this assessment, placed defendant under arrest. The following morning defendant gave a statement to the police indicating that he believed the pills to be "speed" and that he had gotten

them the previous evening in exchange for marijuana and that he intended to sell them.

A subsequent laboratory test disclosed the pills to be caffeine and not "speed." Trial testimony offered by the State indicated that the pills were similar in appearance to other types of controlled dangerous substances, that undercover agents had purchased drugs or their "look-alike" non-narcotic counterparts which appeared very similar to the pills possessed by defendant and that reasonable persons would think the pills were controlled dangerous substances even though they were slightly different in appearance from the true narcotics. The prosecution witnesses also testified that they used the Physician's Desk Reference (PDR) to compare the pills seized from defendant with pictures of narcotics contained in this book and found that the pills resembled three types of controlled dangerous substances. During the course of their testimony, these witnesses utilized the PDR in describing the similarities and differences between the controlled dangerous substances and defendant's pills. Although the State did not move the PDR into evidence, at the conclusion of the defendant's case, defense counsel sought its admission. The trial court refused to admit this exhibit on the ground that defendant had not laid a proper foundation qualifying the evidence under an exception to the hearsay rule. A motion for a new trial based upon an alleged error in this ruling was denied as the court considered the refusal to admit the book had not created a potential for prejudice or injustice.

Defendant advances the following appellate arguments:

I. THE LOOK-ALIKE STATUTE VIOLATES BOTH THE STATE AND FEDERAL CONSTITUTION[S].

A. Introduction.

B. N.J.S.A. 24:21-19.1a(3) Is Unconstitutionally Vague.

C. N.J.S.A. 24:21-19.1a(3) Is Unconstitutionally Overbroad.

D. The Defendant Was Convicted With The Use Of An Unconstitutional ...


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