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State ex rel O.V.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 28, 2007

STATE OF NEW JERSEY IN THE INTEREST OF O.V.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FJ-07-4484-05.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 14, 2007

Before Judges S.L. Reisner and C.L. Miniman.

Juvenile O.V. was charged with delinquency for distribution of cocaine contrary to N.J.S.A. 2C:35-5 (count one), distribution of cocaine within 1000 feet of a school in violation of N.J.S.A. 2C:35-7 (count two), possession of twenty-nine vials of cocaine in violation of N.J.S.A. 2C:35-10 (count three), possession of twenty-nine vials of cocaine with intent to distribute in violation of N.J.S.A. 2C:35-5 (count four), possession of twenty-nine vials of cocaine with intent to distribute within 1000 feet of a school in violation of N.J.S.A. 2C:35-7 (count five), and conspiring with another to sell cocaine in violation of N.J.S.A. 2C:5-2 (count six).*fn1 An adjudicatory hearing was conducted in the Summer of 2005, and on August 11, 2005, the Family Part judge adjudicated O.V. delinquent based on his possession of cocaine (count one), possession of cocaine with intent to distribute (count three), and conspiracy to distribute cocaine (count six). The remaining charges were found to be duplicative and were dismissed with prejudice.

The judge sentenced O.V. to a probationary term of one year concurrently on counts one and six and merged count three with count one for sentencing. On count one, distribution of cocaine, the judge imposed a $1000 Drug Enforcement Demand Reduction ("DEDR") penalty, a $25 lab fee, a $30 Victims of Crime Compensation Board ("VCCB") penalty, a $15 Law Enforcement Officers Training and Equipment Fund ("LEOF") fee, and suspended O.V.'s driver license for six months. The judge imposed an additional VCCB penalty of $30 on count six, conspiracy.

The evidence adduced at the hearing as found by the judge established that on May 10, 2005, police employed by the City of Newark were conducting surveillance in the vicinity of May Street and Summer Avenue, "a known high narcotics traffic area." When a marked patrol car passed in front of the Borinquen Supermarket, five men who had been congregating there disbursed. Shortly thereafter, two of them, O.V. and Lorenzo Pieor ("Pieor"), returned to their previous positions about ten to fifteen feet apart. One of the detectives conducting the surveillance observed Fernando Cruz approach O.V. and engage him in a discussion. O.V. then signaled to Pieor, who "immediately jogged over to a tree[,]" "retrieved an item from a green Pringle[s] can and replaced the can in the area of the tree." Pieor then approached Cruz and handed him the item in exchange for some money.

The police immediately apprehended all three individuals. One of the detectives then went over to the tree and retrieved the green Pringles can, which contained twenty-nine vials of cocaine. All three were searched incident to the arrest. Detectives retrieved one vial of cocaine from Cruz, and Pieor was found to have $39. O.V. had neither money nor drugs. The contraband tested positive for cocaine.

The Family Part judge found that O.V. had constructive possession of the cocaine in that he knew of the cocaine's presence, knew it was cocaine, and exercised dominion and control over it. The judge also found that O.V. shared constructive possession with Pieor. The judge determined that O.V. intended to sell or distribute the cocaine "in conjunction with Lorenzo Pieor," as O.V. solicited or aided Pieor in the distribution to Cruz. He concluded that counts one and four were duplicative*fn2 as were counts two and five. He adjudicated O.V. delinquent based on his violation of N.J.S.A. 2C:35-5, the State having proven all of the elements of count one, distribution of cocaine. He also adjudicated O.V. delinquent based on his violation of N.J.S.A. 2C:35-10, the State having proven all of the elements of count three, possession of twenty-nine vials of cocaine. Finally, he adjudicated O.V. delinquent based on his violation of N.J.S.A. 2C:5-2, the State having proven all of the elements of count six, conspiracy to sell cocaine.

On appeal, O.V. argues that count six, conspiracy to sell, should have been merged with count one, distribution of cocaine. The State, on the other hand, argues that the conspiracy was greater in scope than the count one distribution and urges that merger is not appropriate.

The doctrine of merger is well defined. Merger is mandated unless "the conspiracy proven has criminal objectives other than the substantive offense proven." State v. Hardison, 99 N.J. 379, 380 (1985).

The Code takes the view that in this sense conspiracy is similar to attempt, which is a lesser-included offense of the completed offense. A conviction of the completed offense will adequately deal with the conduct. The Code's drafters were equally explicit that "[t]his is not true, however, where the conspiracy has as its objective engaging in a course of criminal conduct since that involves a distinct danger in addition to that involved in the actual commission of any specific offense."

[N.J Criminal Law Revision Comm'n: Commentary 18-19 (1971) ("Code Commentary")]. The Code recognizes the grave dangers that organized criminal activity poses to society. See N.J.S.A. 2C:5-2g (conspiracy conviction of leader of organized criminal activity does not merge with crime constituting racketeering activity under N.J.S.A. 2C:41-1). Therefore, the limitation of the Code is confined to the situation in which the completed offense was the sole criminal objective of the conspiracy. "There may be conviction of both a conspiracy and a completed offense committed pursuant to that conspiracy if the prosecution shows that the objective of the conspiracy was the commission of additional offenses." Code Commentary at 19. [Id. at 386-87.]

Therefore, the court "must determine whether the judgment of conviction establishes that the conspiracy had additional criminal objectives other than the completed offense." Id. at 387.

The determination that counts one (distribution) and four (intent to distribute) were duplicative might suggest that the substantive offenses found under counts one (sale of one vial) and three (possession of twenty-nine other vials) were not so broad in scope as the conspiracy to sell cocaine charged in the sixth count. However, the judge specifically determined that O.V. constructively possessed all of the cocaine "with the intent to sell or distribute" and solicited the sale of the one vial to Cruz (emphasis added). Because the judge made the necessary fact findings to convict under count four (possession with intent to distribute) count three (simple possession) should have merged with count four. Then it becomes abundantly clear that count six (conspiracy) must merge into counts one and four, as there was no proof that the conspiracy was any broader than the two substantive offenses, sale of one vial of cocaine and possession of twenty-nine vials with intent to distribute.

Accordingly, the order adjudicating O.V. delinquent must be amended to merge count six with the substantive offenses.

Reversed and remanded for correction of the adjudication of delinquency.


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