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State v. Gonzalez

Decided: May 8, 1990.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FRANK GONZALEZ, DEFENDANT-APPELLANT



J.h. Coleman, Brody and Skillman. The opinion of the court was delivered by Brody, J.A.D. Skillman, J.A.D., concurring in part and dissenting in part.

Brody

[241 NJSuper Page 94] Defendant sold 0.17 grams of cocaine to an undercover police officer near a high school. As a result, he was convicted under the Comprehensive Drug Reform Act of 1986, N.J.S.A. 2C:35-1 et seq. (Drug Reform Act), of third-degree unlawful distribution

of less than one-half ounce of cocaine, a violation of N.J.S.A. 2C:35-5a(1) and -5b(3), and third-degree distribution of a controlled dangerous substance within 1,000 feet of school property, a violation of N.J.S.A. 2C:35-7 (Section 7). The trial judge imposed two concurrent five-year prison terms, a minimum of three years to be served before parole eligibility for the sale near a school as mandated by Section 7. The judge also imposed for each crime a Drug Enforcement and Demand Reduction (DEDR) penalty of $2,000, a lab fee of $50, and a Violent Crimes Compensation Board penalty of $30. Finally, the judge revoked defendant's driver's license for two years.

Defendant's arguments, which are not directed to his guilt but to various aspects of the sentencing process, are as follows:

I. 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 Distribution of CDS And Distribution Of CDS Within 1000 Feet Of School Property Should Be Merged.

II. THE "WITHIN 1,000 FEET OF ANY SCHOOL PROPERTY" PROVISION OF N.J.S.A. 2C:35-7 VIOLATES BOTH THE STATE AND FEDERAL CONSTITUTIONS FACIALLY AND AS APPLIED (U.S. CONST. AMEND. V, XIV; N.J. CONST. (1947) ART. I, PAR. 1). (Not Raised Below.)

A. The "Within 1,000 Feet of School Property" Provision of N.J.S.A. 2C:35-7 Is Unconstitutionally Vague On Its Face And As Applied Herein.

B. This Court Should Render N.J.S.A. 2C:35-7 Constitutional By Limiting The Reach Of The Statute To Offenses That Occur Within Schools Or On School Property When School Is In Session And Children Are Present.

C. Application of N.J.S.A. 2C:35-7 To The Case At Bar Denied Defendant Due Process Of Law And Equal Protection Of The Law Under The State And Federal Constitutions.

1. Defendant Was Denied His Right To Due Process Of Law (U.S. Const. Amend. XIV And N.J. Const. (1947) Art. I, Par. 1).

2. Defendant Has Been Denied His Right To Equal Protection Of The Law (U.S. Const. Amend. XIV And N.J. Const. (1947) Art. I, Par. 1).

III. THE MANDATORY DRUG ENFORCEMENT AND DEMAND REDUCTION (DEDR) PENALTIES OF N.J.S.A. 2C:35-15 VIOLATE BOTH STATE AND FEDERAL CONSTITUTIONS.

A. N.J.S.A. 2C:35-15 Is Unconstitutional Because The Mandatory Drug Enforcement And Demand Reduction (DEDR) Penalties Discriminate Against Those Individuals Convicted Of Drug Offenses Since Individuals Convicted Of Non-Drug Offenses Are Not Exposed To Mandatory Fines. (U.S. Const. Amend. XIV; N.J. Const. (1947), Art. I, Par. 1). (Not Raised Below.)

B. N.J.S.A. 2C:35-15 Which Provides For Mandatory Drug Enforcement and Demand Reduction Penalties (DEDR) 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., Is Fundamentally Unfair And Therefore Violates The Defendant's Right To Due Process. (U.S. Const. Amend. XIV; N.J. Const. (1947), Art. I, Par. 1). (Not Raised Below.)

C. N.J.S.A. 2C:35-15 Which Provides For Mandatory Drug Enforcement And Demand Reduction (DEDR) Penalties To Be Imposed Upon Individuals Convicted For Drug Offenses Is Cruel And Unusual Punishment. (U.S. Const. Amend. VIII; N.J. Const. (1947), Art. I, Par. 12). (Not Raised Below.)

IV. THE TWO $2,000 DEDR PENALTIES ARE ILLEGAL SINCE N.J.S.A. 2C:35-15 MANDATES $1,000 DEDR PENALTIES FOR THIRD DEGREE OFFENSES.

V. THE TRIAL COURT ERRED IN IMPOSING A SENTENCE GREATER THAN THE PRESUMPTIVE TERM AND IN FAILING TO SET FORTH REASONS ON THE RECORD.

The State concedes that the DEDR penalty for each conviction must be reduced because it exceeds $1,000, the sum mandated by N.J.S.A. 2C:35-15 for the conviction of a third-degree drug crime.

Defendant's challenges to Section 7 have been rejected by this court in several opinions to which we subscribe. State v. Blow, 237 N.J. Super. 184, 567 A.2d 253 (App.Div.1989) (sustaining constitutionality of non-merger provision of Section 7), State v. Anaya, 238 N.J. Super. 31, 568 A.2d 1208 (App.Div.1990) (rejecting interpretation of Section 7 that would limit non-merger to mandatory minimum prison term), and State v. Ogar, 229 ...


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