On appeal from Superior Court, Law Division, Passaic County.
Petrella, O'Brien and Stern. The opinion of the court was delivered by Stern, J.A.D.
[238 NJSuper Page 33] After denial of her motion to suppress evidence, defendant was convicted of possession of a controlled dangerous substance, heroin, contrary to N.J.S.A. 2C:35-10a(1) and 2C:2-6 (count one); possession with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and b(3), and 2C:2-6 (count two); and possession with intent to distribute within 1,000 feet of school property, contrary to N.J.S.A. 2C:35-5a, 2C:35-7 and 2C:2-6 (count three).*fn1 The trial judge merged count one (possession) with counts two and three, and sentenced defendant on count two to a five-year term of imprisonment, with an 18-month period of parole ineligibility, and on count three to a concurrent five-year term of imprisonment with the statutorily mandated three-year period of parole ineligibility. In addition, the court imposed separate $1,000 Drug Enforcement and Demand Reduction (DEDR) penalties and $50 lab fees on each count, as
well as a $30 Violent Crimes Compensation Board penalty. Defendant's driver's license was also revoked for six months.*fn2
On this appeal defendant argues:
POINT I THE POLICE DID NOT HAVE PROBABLE CAUSE TO ARREST MARIA ANAYA AND THE EVIDENCE SEIZED BY THE POLICE AS A RESULT OF THEIR UNLAWFUL ARREST OF THE DEFENDANT SHOULD HAVE BEEN SUPPRESSED. (U.S. CONST. AMENDS. IV AND XIV; N.J. CONST. (1947), ART. I, PAR. 7).
POINT II THE NON-MERGER PROVISION OF N.J.S.A. 2C:35-7 VIOLATES BOTH STATE AND FEDERAL PROHIBITIONS AGAINST DOUBLE JEOPARDY. (U.S. CONST. AMEND. V; N.J. CONST. ART. I, PAR. II). (Not Raised Below).
A. New Jersey Law Requires Merger To Prevent Defendant From Being Punished Twice For The Same Offense.
B. Notwithstanding N.J.S.A. 2C:35-7 The Defendant's Convictions for Possession With Intent And Possession With Intent Within 1,000 Feet Of A School Should Be Merged.
POINT III N.J.S.A. 2C:35-7 IS UNCONSTITUTIONALLY VAGUE IN VIOLATION OF THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW. (U.S. CONST. AMEND. V, XIV; N.J. CONST. (1947) ART. I, PAR. 1.)
POINT IV N.J.S.A. 2C:35-15 WHICH PROVIDES FOR MANDATORY DRUG ENFORCEMENT AND DEMAND REDUCTION (DEDR) PENALTIES TO BE IMPOSED ON ALL PERSONS CONVICTED OF OFFENSES ENUMERATED IN THE COMPREHENSIVE DRUG REFORM ACT OF 1986, N.J.S.A. 2C:35-15 ET SEQ., VIOLATES THE DEFENDANT'S RIGHTS TO EQUAL PROTECTION AND DUE PROCESS AND IS CRUEL AND UNUSUAL PUNISHMENT. (U.S. CONST. AMEND. VIII, XIV; N.J. CONST. (1947), ART. I, PAR. 1, PAR. 12).
POINT V THE TRIAL COURT ERRED IN IMPOSING BASE SENTENCES BEYOND THE PRESUMPTIVE TERM AND IN IMPOSING A MANDATORY MINIMUM SENTENCE OF EIGHTEEN MONTHS FOR THE DEFENDANT'S CONVICTION FOR POSSESSION WITH INTENT.
On July 27, 1987, at or about 10 o'clock in the morning, Detective Walter Sattelberger of the Paterson Police Department, Narcotics Vice Patrol, conducted a "surveillance" for drug ...