On appeal from the Superior Court, Appellate Division, whose opinion is reported at 241 N.J. Super. 92 (1990).
For reversal in part; 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.
A jury convicted defendant, Frank Gonzalez, of unlawful distribution of cocaine, a violation of N.J.S.A. 2C:35-5(a) (the Section 5 offense). The amount distributed was less than one-half ounce, making the crime one of the third degree. N.J.S.A. 2C:35-5b(3). Because the jury determined that the distribution had been within 1,000 feet of school property, a violation of N.J.S.A. 2C:35-7 (the Section 7 offense), it convicted defendant of that third-degree crime as well. The trial court sentenced Gonzalez to two concurrent five-year custodial terms, with a minimum parole-ineligibility period on the Section 7 offense as mandated by the statute. In addition, the court imposed fees and monetary penalties and revoked defendant's driver's license.
Rejecting defendant's argument that the trial court should have merged the Section 5 and the Section 7 offenses, the Appellate Division affirmed, State v. Gonzalez, 241 N.J. Super. 92, 574 A.2d 487 (1990), relying on Section 7's antimerger provision, which reads:
Notwithstanding the provisions of N.J.S. 2C:1-8 [dealing with prosecution of conduct that constitutes more than one offense] or any other provisions of law,
a conviction arising under this section shall not merge with a conviction for a violation of subsection a. of N.J.S. 2C:35-5 (manufacturing, distributing or dispensing) or N.J.S. 2C:35-6 (employing a juvenile in a drug distribution scheme).
Judge Skillman dissented from so much of the majority opinion as upheld defendant's conviction and sentence under N.J.S.A. 2C:35-5. Id. at 99-108, 574 A.2d 487. The dissent interpreted Section 7's antimerger provision to bar the merger of convictions under that section into convictions under Section 5 but not to apply to the merger of convictions under Section 5 into convictions under Section 7. Defendant's appeal is here as of right because of the dissent below. R. 2:2-1(a)(2).
We reverse the judgment below to the extent that it affirms defendant's conviction of the Section 5 offense and prohibits its merger into the Section 7 violation. We do so substantially on the basis of the perceptive analysis contained in Judge Skillman's dissent, in which he addresses -- correctly, in our view -- (1) the law of merger, 241 N.J. Super. at 99-100, 106-08, 574 A.2d 487; (2) the antimerger provision of Section 7, id. at 100-03, 104-06, 574 A.2d 487; and (3) applicable principles of statutory construction, id. at 103-04, 574 A.2d 487.
We add a note of caution, however. Judge Skillman's opinion can be read to allow, when general merger principles would apply, the merger of all N.J.S.A. 2C:35-5(a) convictions for distribution into N.J.S.A. 2C:35-7 convictions for distribution within 1,000 feet of school property. Our holding, we emphasize, is narrower, and is limited only to those Section 5 offenses that are of the third or fourth degree, e.g., N.J.S.A. 2C:35-5b(3), (5), (9), (11), (12), (13), and (14). We do not reach, and we imply no position on, the issue of merger of first- and second-degree Section 5 offenses with a Section 7 crime, nor the constitutional implications in the event of non-merger. Ours is strictly a statutory-interpretation decision. See State v. Churchdale Leasing, Inc., 115 N.J. 83, 100-10, 557 A.2d 277 (1989), and id. at 112-25, 557 A.2d 277 (Handler, J., concurring). For a determination of the above-stated reserved question we are content
to await a case in which, unlike this appeal, the issues are posed directly and in which the argument is sharply focused. On our docket is State v. Dillihay, decision below reported at 241 N.J. Super. 553, 575 A.2d 876 (App.Div.1990), here as of right, which raises the propriety of merger of a second-degree Section 5 offense with a Section 7 crime.
The judgment of the Appellate Division is reversed in part, and the cause is remanded to the trial court for entry of an amended judgment vacating defendant's ...