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State v. Newman

January 28, 1987

STATE OF NEW JERSEY, PLAINTIFF,
v.
HOWARD W. NEWMAN, DEFENDANT. STATE OF NEW JERSEY, PLAINTIFF, V. BRUCE W. BOHNHORST, DEFENDANT



Municipal Nos. C-33127, C-33351,2, Summons Nos. 191896, 195245, 195246, M.A. Nos. 3835, 3840.

Beglin, A.j.s.c.

Beglin

OPINION

These appeals present a common question, one faced by municipal courts on a regular basis but not addressed in any reported decision.

Bruce Bohnhorst and Howard Newman were separately issued (1) a motor vehicle summons charging possession of marijuana in a motor vehicle in violation of N.J.S.A. 39:4-49.1, and (2) a complaint charging the disorderly persons offense of possession of less than 25 grams of marijuana in violation of N.J.S.A. 24:21-20(a)(4). After entry of guilty pleas to both, the municipal courts in each instance merged the motor vehicle offense into the disorderly persons offense. Newman was granted a conditional discharge under N.J.S.A. 24:21-27, while Bohnhorst was fined. The State appeals each disposition, urging the mergers were improper and that separate sentences should have been imposed on the motor vehicle offenses. As each plea was entered on a conditional basis, the State's right of appeal is properly unchallenged. R. 3:9-3(f) and 7:1.

From the arresting officer's report, it appears Newman, while operating his vehicle with an expired registration sticker, admitted to smoking a roach, which was found by the officer in the ashtray. Three small roaches were also located in the ashtray and a bag with a small amount of marijuana was in the console. Bohnhorst, arrested for driving at an excessive speed, admitted to possessing a partially smoked roach found in the ashtray as well as a bag containing .078 grams of marijuana located in the glove compartment. In each instance, the prosecutor has conceded the same evidence would be utilized to prove possession of the prohibited substance in both charges.

The conduct proscribed by N.J.S.A. 24:21-20(a)(4) is the knowing or intentional possession of 25 grams or less of marijuana. Section (b) of the statute also prohibits the use or being under the influence of any controlled dangerous substance. Both are disorderly persons offenses, punishable by a fine up to $1000 and/or imprisonment up to six months. N.J.S.A. 2C:43-3 and 8. In addition, section (c) permits the court in its discretion to order forfeiture of driving privileges for a period not greater than two years.

N.J.S.A. 39:4-49.1 prohibits the operation of a motor vehicle while knowingly having any controlled dangerous substance in one's possession or in the vehicle. By amendment effective July 17, 1985, the group of drugs which, if possessed, would result in a violation was expanded to include marijuana. c. 239, L.1985. The penalty for violating this section is not less than a $50 fine and the mandatory forfeiture of the right to operate a motor vehicle for a two-year period.

It is now firmly established that if someone "has committed only one offense, he cannot be punished as if for two. . . . (M)ultiple punishment for a single wrongdoing (is prohibited). . . . (I)t makes no difference whether it be by force of double jeopardy, substantive due process, or some other legal tenet that double punishment . . . is forbidden." State v. Davis, 68 N.J. 69, 77 (1975); State v. Truglia, 97 N.J. 513, 522 (1984). While recognizing the "undeniable intellectual attraction", the Supreme Court has to date left open the question of whether this principle should be based upon the doctrine of merger incorporated in the double jeopardy provisions of the federal and state constitutions, or substantive due process rights, or the provisions of the Code of Criminal Justice, N.J.S.A. 2C:1-8. Davis, supra, 68 N.J. at 76; see Truglia, supra, 97 N.J. at 522; State v. Alevras, 213 N.J. Super. 331 (App.Div.1986).

Although easily articulated, the principle nonetheless remains difficult to apply essentially because the legislative branch has sought to address various types of anti-social conduct at different times and in different forms, with general language yet within the parameters of an overall statutory scheme. The first inquiry must therefore be whether separate offenses have been created by the Legislature. In this respect there is no doubt that one continuous type of conduct may be divided into various stages with each stage separately punishable. For example, each episode ...


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