State v. Williams

707 A.2d 1387, 310 N.J. Super. 92, 1998 N.J. Super. LEXIS 166
New Jersey Superior Court Appellate Division·Decided April 14, 1998·Published·Cited by 2 cases

Opinion

The opinion of the court was delivered by

WALLACE, Jr., J.A.D.

Defendant Christopher J. Williams was convicted by a jury of third degree possession of cocaine, N.J.S.A. 2C:35-10(a)(l) (count one); second degree possession with the intent to distribute one-half ounce or more of cocaine, N.J.S.A. 2C:35-5(b)(2) (count two); and third degree possession of cocaine with the intent to distribute within a school zone, N.J.S.A 2C:35-7 (count three). The judge granted the State’s motion to impose an extended term and sentenced defendant to a twenty year term, with a ten year period of parole ineligibility.

On appeal, defendant makes the following arguments:

POINT I:
N.J.S.A. 2C:35-5b(2), WHICH PKOSCEIBES THE POSSESSION OF ONE-HALF OUNCE OE MOEE OF ILLEGAL DEUGS “INCLUDING ANY ADUL-TEEANTS OE DILUTANTS,” MUST BE INTEEPEETED TO MEAN THAT MOST OF THE SUBSTANCE CONSISTS OF THE ILLEGAL DEUG. (Not Eaised Below).
POINT II:
THE TEIAL COUET’S JUEY INSTEUCTION THAT “THE STATE NEED NOT PEOVE THE DEFENDANT’S KNOWLEDGE AS TO THE QUANTITY OF THE DEUGS” WAS EEEONEOUS. (Partially Eaised Below).
POINT III:
THE MAXIMUM EXTENDED TEEM OF 20 YEAES IMPEISONMENT WITH 10 YEAES OF PAEOLE INELIGIBILITY ON THE DEUG CHAEGE WAS EXCESSIVE.

Defendant, also submitted a supplemental pro se brief, in which he contends:

POINT I:
THE STATE’S MISUSE OF EXPEET WITNESS TESTIMONY TO: (a) BOLSTEE THE TESTIMONY OF THE STATE’S FACT WITNESSES, (b) TO OPINE ON SUBJECTS BEYOND THE KEN OF THE JUEY, AND (c) TO INFEE DEFENDANT’S GUILT FEOM COMMON CONDUCT OF DEUG DEALEES DEPEIVED DEFENDANT OF DUE PEOCESS OF LAW AND A FAIE TEIAL. (Not Eaised Below).
POINT II:
THE COEEELATION OF EEFEEENCES TO DEFENDANT’S PBIOE CONVICTIONS, AEEESTS BY “NAECOTICS UNIT” DETECTIVE OELS AND THAT THE NAECOTICS UNIT WAS INVESTIGATING DEFENDANT, DEFEATED THE SANITIZATION OF DEFENDANT’S CONVICTIONS AND CHEATED THE INFEEENCE THAT DEFENDANT WAS DISPOSED TO[95]*95WARDS THE CRIMINAL CONDUCT CHARGED, THEREBY DEPRIVING DEFENDANT OF AN IMPARTIAL JURY AND A FAIR TRIAL.
POINT III:
THE ADMISSION OF TESTIMONY THAT A NON-TESTIFYING WITNESS HAD TOLD POLICE THAT DEFENDANT POSSESSED DRUGS DEPRIVED DEFENDANT OF THE RIGHT TO CONFRONTATION AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PARA 10 OF THE NEW JERSEY CONSTITUTION. (Not Raised Below).

We have carefully considered defendant’s arguments in his main brief and pro se supplemental brief, and, except for his sentencing argument, his contentions are without merit. R. 2:ll-3(e)(2). Before turning to the sentencing issue, we offer brief comment on defendant’s assertion that N.J.S.A. 2C:35 — 5(b)(2) is unconstitutionally vague and therefore, his conviction for second degree possession with intent to distribute must be reduced.

At trial, the State presented evidence that on June 8, 1994, between nine and ten p.m., Detective William Oels and several other officers, based upon information received from a confidential informant, conducted a surveillance of buses returning to New Brunswick from New York City. Specifically, the officers expected defendant to return with a quantity of cocaine from New York. The officers observed defendant depart from a bus and light a cigarette.

Oels stated that defendant dropped his cigarette as he saw the officers approaching and threw a plastic bag on the sidewalk. Another officer recovered the bag which contained cocaine. After a brief struggle, defendant was arrested. The State presented Sergeant Christopher Engram as an expert, in the use and distribution of controlled dangerous substances. Engram testified that the contents of the bag, with a net weight of 15.84 grams tested positive for cocaine. The State and the defendant agreed upon and entered into a stipulation that the contents of the recovered bag were properly analyzed, and that the contents tested positive for cocaine in the amount of 15.84 grams, over one-half ounce.

[96]*96Defendant testified on his own behalf. He admitted the police officers’ version of events was correct, except he denied turning his back to the officers and throwing anything on the ground. Defendant now contends that N.J.S.A. 2C:35-5b(2) is unconstitutionally vague and, therefore, his conviction for second degree possession with intent to distribute must be reduced.

A facially vague statute is one that is impermissibly vague in all its applications; it proscribes no conduct with sufficient certainty. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, 102 S.Ct. 1186, 1191, 71 L. Ed.2d 362, 369 (1982).

Under the prior version of N.J.S.A 2C:35-5b(2) to “make out an offense for either a first or second degree crime, the State had to prove that at least 3.5 grams of the total weight of the substance was ‘pure freebase drug’.” State v. Gosa, 263 N.J.Super. 527, 536, n. 4, 623 A.2d 301 (App.Div.), certif. denied, 134 N.J. 477, 634 A.2d 525 (1993). However, the Legislature deleted the requirement for a tninimum quantity of pure free base drug in a drug-adulterant mixture in 1988. Cannel, New Jersey Criminal Code Annotated, comment 3 on N.J.S.A 2C:35-5 (1998).

In Gosa, we held that under N.J.S.A 2C:35-5b, when determining the weight of the drug for the various offenses, the listed drugs include “any adulterants or dilutants.” Gosa, supra, 263 N.J.Super. at 536, 623 A.2d 301. Further, we noted that “[o]ther jurisdictions have held that for purposes of sentencing, the weight of the [controlled dangerous substance] takes into account the weight of the mixture of the cocaine and any cutting agents, not just the weight of the pure cocaine.” Ibid, (citing United States v. Touby, 909 F.2d 759, 772 (3d Cir.1990), aff'd, 500 U.S. 160, 111 S.Ct. 1752, 114 L. Ed.2d 219 (1991); Commonwealth v. Vallejo, 532 Pa. 558, 616 A.2d 974, 976-77 (1992)). Thus, under the plain meaning of the statute, a defendant who possesses one-half ounce of cocaine including the weight of any adulterants or dilutants may be charged with a second degree crime. See also State v. Land, 136 N.J.Super. 354, 358, 346 A.2d 411 (App.Div.1975), rev’d on [97]*97other grounds, 73 N.J. 24, 372 A.2d 297 (1977) (holding that the stalks and seeds of marijuana are adulterants and may be included in the weight of marijuana charged).

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State v. Williams, 707 A.2d 1387, 310 N.J. Super. 92, 1998 N.J. Super. LEXIS 166 (N.J. Ct. App. 1998).

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