Decided: April 9, 1991.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RAYMOND BLOW, DEFENDANT-APPELLANT
On certification to the Superior Court, Appellate Division, whose opinion is reported at 237 N.J. Super. 184, 567 A.2d 253 (1989).
For reversal and remandment -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock and Stein. For affirmance -- Justices O'Hern and Garibaldi. O'Hern, J., dissenting. Garibaldi, J., joins in this opinion.
[123 NJ Page 472] We granted certification, 122 N.J. 153, 584 A.2d 222 (1990), to review the Appellate Division's determination that defendant's convictions for the third-degree offense of possession of heroin with intent to distribute (N.J.S.A. 2C:35-5a(1) and -5b(3)) did not merge with his conviction for possession of heroin with intent to distribute within 1,000 feet of school property (N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7). 237 N.J. Super. 184, 567 A.2d 253. For the reasons set forth in our opinion in State v.
[123 NJ Page 473]
Gonzalez, 123 N.J. 462, 588 A.2d 816 (1991), also decided today, we hold that the offenses did merge. See also State v. Gonzalez, 241 N.J. Super. 92, 99-108, 574 A.2d 487 (App.Div.1989) (Skillman, J.A.D., concurring in part and dissenting in part).
We reverse so much of the judgment below as denied merger. We remand the cause to the trial court for entry of an amended judgment vacating defendant's conviction for possession with intent to distribute under N.J.S.A. 2C:35-5a(1) and -5b(3).
O'HERN, J., dissenting.
For the reasons set forth in my dissenting opinion in State v. Gonzalez, 123 N.J. 462, 588 A.2d 816 (1991), I would affirm so much of the judgment below that denied merger of the N.J.S.A. 2C:35-5 and N.J.S.A. 2C:35-7 offenses.