On appeal from the Superior Court, Law Division, Union County.
King, Long and Stern. The opinion of the court was delivered by Stern, J.A.D. Long, J.A.D., dissenting.
[245 NJSuper Page 258] Defendant was indicted for possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (count one); possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(a)(1) (count two) and possession of a controlled dangerous substance with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count three). Tried to a jury, defendant was convicted on all three counts. At sentencing, count one was merged into count two, and on the second count defendant was sentenced to the custody of the Commissioner of Corrections for four years. On count three he received
a concurrent five year sentence with the required three year period of parole disqualification. His driver's license was suspended for six months.*fn1 Mandatory laboratory fees, DEDR and VCCB penalties were also imposed.
On this appeal defendant contends:
POINT I THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO SUPPRESS THE STATEMENT TAKEN FROM THE POLICE SINCE IT WAS NOT VOLUNTARILY OBTAINED.
POINT II N.J.S.A. 2C:35-7 DENIES EQUAL PROTECTION AND DUE PROCESS OF LAW UNDER THE STATE AND FEDERAL CONSTITUTIONS BY VIRTUE OF ITS ARBITRARY AND IRRATIONAL CLASSIFICATION OF OFFENDERS. (PARTIALLY RAISED BELOW).
POINT III N.J.S.A. 2C:35-7 VIOLATES THE STATE AND FEDERAL CONSTITUTIONAL PROVISIONS AGAINST DOUBLE JEOPARDY .
With respect to the first point, defendant contends that his statement was involuntary because it was made only after a detective promised him leniency for his cooperation. He testified that the detective said "I could go to the Prosecutor's Office and make a deal for you if you cooperate with me. . . . Well, his exact words were, a deal to make a lesser charge. . . . So, I just confessed and told him . . . that I had the drugs. . . ." The State's witnesses, however, denied there was such a "deal," and the trial judge concluded that he did not have to decide if such an unfulfilled promise rendered the statement involuntary. Rather, he concluded "as a matter of credibility I find, as a matter of fact, that no such such promise was made." The judge stated that his credibility findings were "beyond a reasonable doubt" for reasons expressly stated, including the incredibility of defendant's assertion that the promise was made before defendant was aware of the more serious charges to be filed against him.
As the trial judge made his findings on the basis of credibility, and those findings are supported by credible evidence in the
We adhere to our view that N.J.S.A. 2C:35-7 is constitutional. See e.g. State v. Gonzalez, 241 N.J. Super. 92, 95-96, 574 A.2d 487 (App.Div.1990); State v. Todd, 238 N.J. Super. 445, 449, 570 A.2d 20 (App.Div.1990); State v. Anaya, 238 N.J. Super. 31, 39, 568 A.2d 1208 (App.Div.1990); State v. Ogar, 229 N.J. Super. 459, 471-472, 551 A.2d 1037 (App.Div.1989); see also State v. Brown, 227 N.J. Super. 429, 432-437, 547 A.2d 743 (Law Div.1988); State v. ...