68 N.J. 87 - State v. Jester

How this case has been cited

Cited by 25 later decisions — most recently December 2000 · most notably State v. Davis (1975), State v. Miller (1987)

25 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

Pashman, J.

¶1(dissenting). This is a companion case to State v. Davis, 68 N. J. 69 (1975) and State v. Ruiz, 68 N. J. 54 (1975), also decided today. The majority offers two alternate theories for sustaining the separate convictions for distribution of a controlled dangerous substance and possession with intent to distribute of such a substance, both in violation of N. J. S. A. 24:21-19 (a) (1) on the facts of this case. The first is that convictions for these offenses never merge,1 even if the same drugs are the basis for both convictions. I think this rationale unsound and improper, and reject it for the reasons set out in my dissent to State v. Ruiz, supra at 54.

¶2The second theory is that the jury could have based its verdict on the possession count on evidence that the defendant was in possession of a quantity of heroin in addition to that sold to the undercover agent. Ante at 90-91. It may be that it would be proper to sustain both convictions if the conviction for possession were, in fact, based upon this ra*93tionale. I see no need to definitively decide that question here. The State did not try the case on that theory, nor does it now argue that the conviction could or should be upheld on this basis. The testimony of Detective McCue upon which the majority relies amounts to little more than a passing comment by the officer in the course of direct examination. The prosecution did not request that the trial judge instruct the jury on this theory and he did not do so. At this point, it would be impossible for the Court to ascertain from the record before it whether the jury reached its verdict on the basis of the possession of heroin other than that sold to the undercover agent even if the State now urged that it attempt to do so.

¶3I would vacate the conviction for possession with intent to distribute as having merged into the conviction for distribution. The latter conviction would, of course, be unaffected by this disposition.

¶4For affirmance — Chief Justice Hughes, Justices Sullivan and Clifford and Judge Conford — 4.

¶5For reversal — Justice Pashman — i.