On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
Michels, Cohen and Brochin. The opinion of the court was delivered by Brochin, J.A.D.
N.J.S.A. 2C:35-9 declares that any person who illegally manufactures, distributes or dispenses any of a list of illegal drugs "is strictly liable for a death which results from the injection, inhalation or ingestion of that substance, and is guilty of a crime of the first degree." In this case, the defendant challenges the constitutionality of that statute.*fn1 We disagree with his argument and therefore affirm.
Defendant Joseph R. Ervin procured cocaine which he and his girlfriend shared. She died as the result. He was indicted for
possessing cocaine contrary to N.J.S.A. 2C:35-10a(1) and N.J.S.A. 2C:35-10a(3), possessing cocaine with the intent of distributing it contrary to N.J.S.A. 2C:35-5b(3), distributing cocaine contrary to N.J.S.A. 2C:35-5b(3), causing a drug induced death contrary to N.J.S.A. 2C:35-9 and for manslaughter contrary to N.J.S.A. 2C:11-4b.
On the ground that N.J.S.A. 2C:35-9 is unconstitutional, defendant moved before the trial court to dismiss the charge of having caused a drug induced death. His motion was denied. Pursuant to a plea bargain, he pleaded guilty to the charge of violating N.J.S.A. 2C:35-9, and the remaining counts of the indictment were dismissed. He was sentenced to ten years' imprisonment.
Having reserved his right to appeal from the denial of his motion to dismiss the count of the indictment against him which charged him with having caused a drug induced death in violation of N.J.S.A. 2C:35-9, defendant now pursues his argument against the constitutionality of the statute before this court. He contends that the strict or absolute liability feature of the statute violates due process of law and exceeds the Legislature's power to create a strict liability crime, and the law also violates the State and Federal constitutional prohibitions against cruel and unusual punishments, U.S. Const., Amend. VIII and N.J. Const. (1947), Art. I, par. 12.
N.J.S.A. 2C:35-9 was adopted as part of the Comprehensive Drug Reform Act of 1987, N.J.S.A. 2C:35-1 et seq. and following. The absolute liability or "transferred intent" feature of the criminal homicide which it created was modeled on and is similar to the same element in felony murder law.*fn2 Because of the similarity, cases which have considered constitutional
challenges to felony murder statutes on grounds similar to those posed by the defendant in the present case are relevant to our decision. The Official Commentary to the Comprehensive Drug Reform Act (L. 1987, c. 106, 9 Criminal Justice Quarterly, 149, 159-160 (1987), describes the felony murder model and its similarities to the crime proscribed by N.J.S.A. 2C:35-9 as follows:*fn3
The offense defined in this section is somewhat similar to the 'felony murder'*fn4 provisions developed at common law*fn5 and which are now codified in Chapter 11 of the penal code.*fn6 The penal code currently provides, for example, that criminal homicide constitutes murder when the defendant, acting either alone or with one or more other persons, is engaged in the commission of, attempt to commit or immediate flight after committing certain enumerated crimes, and in the course of such crime or flight therefrom causes the death of a person other than one of the participants. N.J.S.A. 2C:11-3a(3). It is well-established that the State need not prove in such a prosecution that the death was purposely, knowingly or recklessly ...