On certification to the Superior Court, Law Division, Camden County.
For affirmance -- Justices O'Hern and Garibaldi. For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock and Stein. The opinion of the Court was delivered by Stein, J. Garibaldi, J., Dissenting. Justice O'Hern joins in this opinion.
In this case, as in State v. Dillihay, 127 N.J. 42, 601 A.2d 1149 (1992), also decided today, we consider whether a defendant's conviction for violating N.J.S.A. 2C:35-7, which prohibits distribution of controlled dangerous substances within a school zone, merges with a conviction for a first- or second-degree violation of N.J.S.A. 2C:35-5 (Section 5), the provision of New Jersey's Controlled Dangerous Substances Act (the Act) that generally prohibits the manufacturing, distribution, or dispensing
of controlled dangerous substances. For the reasons set forth in Dillihay, supra, 127 N.J. at 46-56, 601 A.2d at 1151-1156, we hold that the convictions must merge and that defendant's sentence shall include the mandatory minimum sentence required to be imposed because of defendant's first-degree Section 5 conviction.
Antonio Brana was arrested following the sale of over 500 grams of cocaine to undercover agents. Pursuant to a prior arrangement, undercover members of the Narcotics Task Force of the Camden County Prosecutor's office met Brana's co-defendant, Edwardo Bravo, to purchase a large amount of cocaine. Bravo joined the undercover agents in their car and directed them to a location in Camden where the transaction was to take place. Bravo directed the agents to park and walked to a nearby Toyota in which Brana was the passenger. Agents observed Brana hand Bravo a package of cocaine, which Bravo in turn sold to the agents on returning to their car. That transaction occurred within 1,000 feet of a school zone. After additional agents were summoned, the Toyota sped away and Camden police chased first the Toyota and then its occupants after they abandoned the car. During the car chase, the police observed Brana discard a gun from the Toyota. Brana was apprehended and arrested. He was charged with and convicted of the following offenses:
1. Distribution of more than five ounces of cocaine (N.J.S.A. 2C:35-5a(1) and -5b(1)) (first degree);
2. Distribution of cocaine within a school zone (N.J.S.A. 2C:35-7) (third degree);
3. Conspiracy to distribute Controlled Dangerous Substances (N.J.S.A. 2C:5-2);
4. Unlawful possession of a handgun (N.J.S.A. 2C:39-5b) (third degree).
The Law Division merged the conspiracy violation (count three) into the distribution violation (count one) and sentenced Brana to fifteen years, with a five-year period of parole ineligibility, for distributing cocaine. The court also imposed a concurrent
four-year sentence, with three years of parole ineligibility, for violating N.J.S.A. 2C:35-7 (Section 7 of the Act or the school-zone statute), and a concurrent four-year ...