King, Shebell and Keefe. The opinion of the court was delivered by Shebell, J.A.D.
The principal issue in this case is whether refusal to merge the defendant's convictions of possession of controlled dangerous substance (CDS) with intent to distribute and possession with intent to distribute within 1,000 feet of a school, as mandated by our Legislature, is constitutionally permissible. Defendant Raymond Blow appeals from the sentences imposed pursuant to a plea agreement with the Passaic County Prosecutor's Office. Defendant was indicted for possession of heroin (N.J.S.A. 2C:35-10) (Count 1); possession of less than one-half ounce of heroin with intent to distribute (N.J.S.A. 2C:35-5a(1) and b(3)) (Count 2), and possession of heroin with intent to distribute within 1000 feet of school property (N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7) (Count 3). Under the terms of the agreement, the prosecutor recommended to the judge that Count 1 of the indictment be dismissed; defendant pleaded guilty to Counts 2 and 3 of the indictment.
Defendant was sentenced on Count 3 to imprisonment for a period of five years, three years without parole eligibility. Defendant was given the same sentence on Count 2, concurrently with Count 3. Both sentences were consecutive to the sentence defendant was then serving. Defendant, on each of Counts 2 and 3, was ordered to pay a $1,000 drug enforcement penalty, a $50 laboratory fee, and a $30 Violent Crimes Compensation Board penalty. His driver's license was revoked for
a total period of three years, two years on Count 3 and one year on Count 2, consecutively.
Defendant makes the following arguments on appeal: (1) the conviction of possession of CDS with intent to distribute should be merged with the conviction of possession of CDS with intent to distribute within 1,000 feet of a school; (2) New Jersey law requires merger to prevent defendant from being punished twice for the same offense; (3) notwithstanding N.J.S.A. 2C:35-7, Counts 2 and 3 should merge; (4) the sentence imposed is excessive; (5) the custodial sentence imposed is unsupported by the statutory aggravating and mitigating factors; (6) the forensic laboratory fee, imposed pursuant to N.J.S.A. 2C:35-20, should be reduced to $50, and (7) the suspension of defendant's driver's license should be reduced.
Appellant contends that his convictions on Counts 2 and 3 should have been merged and that the sentencing judge's failure to merge those convictions was "incompatible with constitutional considerations and merger would not negate the intention of the legislature."
N.J.S.A. 2C:35-5(a)(1) states, in relevant part, "it shall be unlawful for any person knowingly or purposely . . . [t]o . . . distribute . . . a controlled dangerous substance. . . ." N.J.S.A. 2C:35-7 states, in relevant part:
Any person who violates subsection a. of N.J.S. 2C:35-5 by distributing, dispensing or possessing with intent to distribute a controlled dangerous substance or controlled substance analog while on any school property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of such school property or a school bus, or while on any school bus, is guilty of a crime of the third degree and shall, except as provided in N.J.S. 2C:35-12, be sentenced by the court to a term of imprisonment. . . . [t]he term of imprisonment shall include the imposition of a minimum term which shall be fixed at, or between, one-third and one-half of the sentence imposed, or three years, whichever is greater, during which the defendant shall be ineligible for parole. . . .
Notwithstanding the provisions of N.J.S. 2C:1-8 or any other provisions of law, a conviction arising under this section shall not merge with a conviction
for a violation of subsection a. of N.J.S. 2C:35-5 (manufacturing, distributing or dispensing) or N.J.S. 2C:35-6 (employing a juvenile in a drug ...