On appeal from Superior Court, Law Division, Monmouth County.
Michels, Shebell and Gaynor. The opinion of the court was delivered by Gaynor, J.A.D.
[222 NJSuper Page 124] An indictment returned by a Monmouth County Grand Jury charged defendant with two counts of aggravated sexual assault (N.J.S.A. 2C:14-2.a), sexual assault (N.J.S.A. 2C:14-2.b), aggravated criminal sexual contact (N.J.S.A. 2C:14-2.a), endangering the welfare of a child (N.J.S.A. 2C:24-4.a) and two counts of distributing a controlled dangerous substance (N.J.S.A. 24:21-19.a(1) and 24:21-26.b). One distribution count was dismissed on the State's pretrial motion. A mistrial was declared by the trial judge upon being informed by the jury, after two hours of deliberation, that they were "hopelessly deadlocked." Defendant's subsequent motion to dismiss the indictment
on grounds of double jeopardy was denied and the case proceeded to a second trial. Following this second trial, defendant was convicted of distribution of a controlled dangerous substance but the jury was deadlocked as to the remaining counts alleging unlawful sexual conduct. A mistrial as to those counts was declared.*fn1 Defendant was thereupon sentenced to a seven-year prison term and ordered to pay a $25 VCCB penalty.
On this appeal, defendant advances the following arguments in support of his contentions that his conviction should be reversed and the distribution count of the indictment should be dismissed or, alternatively, his sentence should be modified or the matter remanded for resentencing with directions to afford defendant the presumption of non-incarceration:
I. THE DEFENDANT'S MOTION FOR A DISMISSAL OF COUNT SIX OF THE INDICTMENT AT THE CONCLUSION OF THE STATE'S PROOF WAS ERRONEOUSLY DENIED.
II. THE DEFENDANT'S FIRST TRIAL WAS IMPROPERLY TERMINATED AND THE SECOND TRIAL WAS THEREFORE A DEPRIVATION OF THE DEFENDANT'S FIFTH AMENDMENT RIGHT NOT TO BE SUBJECTED TO MULTIPLE PROSECUTIONS.
III. THE SENTENCE IMPOSED BELOW WAS MANIFESTLY UNFAIR: IT WAS AN ABUSE OF DISCRETION TO IMPOSE A CUSTODIAL TERM.
The State's evidence in the first trial pertaining to the alleged unlawful distribution of a controlled dangerous substance, disclosed that defendant, while a counsellor at the Monmouth County JINS*fn2 Shelter, had participated in the use of marijuana and cocaine with one J.B., a juvenile resident of the shelter. J.B. testified that he and defendant had smoked a marijuana cigarette together by passing it back and forth between them, but that he, J.B., had supplied the marijuana. In a written statement given to the prosecutor's investigator,
J.B. had stated that defendant got him high a couple of times on marijuana and that defendant uses cocaine but had never supplied any to him. The investigator also testified that during questioning at the prosecutor's office defendant admitted to having brought marijuana into the shelter and sharing it with J.B. Defendant's motion at the conclusion of the State's case for a dismissal of this charge was denied.
In denying defendant's motion, the trial judge concluded that the undisputed evidence as to the passing back and forth of a marijuana cigarette between defendant and J.B. could constitute a transfer within the meaning of the statute prohibiting the distribution of marijuana. He reasoned:
Let's take this in two steps. First of all, let it be said that distribute as that statute -- as that word is defined means, to deliver a controlled dangerous substance; and deliver has a definition which means, an actual or attempted transfer from one person to another of a controlled dangerous substance. And there is no question in this Court's mind that there need not be a sale. There need not be a money transaction. There may not be a giving over and forever surrendering to have a delivery under that statute. Delivery means attempted to transfer or the actual transfer from one person to another of C.D.S. It certainly in this Court's opinion covers the situation where a marijuana cigarette is passed from person A to person B to person D for instance. D is the defendant and then back to A, D the defendant transfers it back to A that is a delivery of a controlled dangerous substance and it matters not in this Court's ...