October 29, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ATTISON ROYER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 96-12-1730.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 3, 2007
Before Judges Parker and Lyons.
Defendant Attison Royer appeals from a judgment of conviction entered on April 21, 2006 after a jury found him guilty of two counts of fourth degree distribution of marijuana, N.J.S.A. 2C:35-5a(1) and 5b(12) (Counts One and Three); three counts of third degree school zone offenses, N.J.S.A. 2C:35-7 (Counts Two, Four and Six); third degree distribution, N.J.S.A. 2C:35-5a(1) and 5b(3) (Count Five); and third degree possession, N.J.S.A. 2C:35-10a(1) (Count Seven).
At sentencing, the trial court merged Count One into Count Two and sentenced defendant on Count Two to a term of three years subject to one year parole ineligibility, consecutive to Counts Four and Six. Count Three was merged into Count Four and defendant was sentenced on Count Four to a term of three years subject to one year parole ineligibility, consecutive to Count Two and concurrent to Count Six. Counts Five and Seven were merged into Count Six and defendant was sentenced on that count to a term of three years subject to three years parole ineligibility concurrent to Count Four and consecutive to Count Two. Thus, defendant was sentenced to an aggregate term of six years subject to three years parole ineligibility.
In this appeal, defendant argues only that:
THE COURT ERRED IN FAILING TO MERGE COUNTS FOUR AND SIX BECAUSE BOTH OFFENSES WERE THE COMMISSION OF A SINGLE ACT AND NEITHER COUNT REQUIRED PROOF OF AN ELEMENT NOT REQUIRED OF THE OTHER.
The facts relating to Counts Four and Six are not in dispute. On January 5, 1996, an undercover officer was approached by defendant who asked what she needed. She asked for "about $20 of smoke." The officer testified, "He gave me a small plastic bag that had crack in it and then a larger [bag] that had marijuana in it" and told her that she could have both for $30.
In Count Four, defendant was charged with distribution of marijuana in a school zone, and in Count Six he was charged with distribution of cocaine in a school zone, both counts arising out of the January 5, 1996 incident. Defendant maintains that the merger is necessary because the sale of cocaine and marijuana were really one offense. The State responds that the two school zone offenses reflected in Counts Two and Four arose from defendant's simultaneous sale of two different illegal drugs in the school zone, resulting in one count for each drug.
The statutory language of N.J.S.A. 2C:35-7 addresses "a controlled dangerous substance" in the singular and does not address the sale of multiple drugs for a single offense. The sale of multiple drugs in a school zone constitutes separate offenses for each drug sold. See State v. Jordan, 235 N.J. Super. 517, 522 (App. Div. 1989), certif. denied, 118 N.J. 224 (1989) (holding that possession with intent to distribute three different drugs constituted separate crimes). We find insufficient merit in defendant's arguments to warrant further discussion in a written opinion. R. 2:11-3(e)(2).
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