acquisition and retention by a possessor of a controlled
substance whether he be seller or user, while distribution
concentrates on the final transfer to a particular party.
Therefore these convictions do not merge.
In State v. Strecko, 244 N.J. Super. 463 (App. Div.
1990), simultaneous possession of more than one
controlled dangerous substance in violation of the same
statute merged for purposes of imposition of sentence
where there was no intent to distribute. Compare State
v. Jordan, 235 N.J. Super. 517 (App. Div.), certif. denied,
118 N.J. 224 (1989), where the court held that
simultaneous possession of three different drugs with
intent to distribute constituted three separate crimes and
therefore did not merge.
State v. Land, 136 N.J. Super. 354 (App. Div.
1975), rev’d o.g., 73 N.J. 24 (1976) held that the offenses
of possession of controlled dangerous substance and
possession with intent to distribute such substance did
not merge where identifiable separate quantities of
controlled dangerous substances were found at different
locations in defendant’s house, under circumstances
which raised inference that one quantity was intended for
distribution, while another was intended for personal
use.
State v. Fariello, 133 N.J. Super. 114 (App. Div.
1975), aff’d in part, rev’d in part o.g., 71 N.J. 552 (1976).
See State v. Selvaggio, 206 N.J. Super. 328 (App. Div.
1985) (Where no distinction of purposes among various
quantities of marijuana residue and hashish was made
when the items were offered into evidence, the charge of
possession of marijuana was a lesser included offense
within the charge of possession with intent to distribute).
State v. Booker, 86 N.J. Super. 175, 178 (App. Div.
1965), held that where the defendant’s control over the
contraband is “fleeting and shadowy in its nature,” then
defendant’s convictions for possession of heroin would
merge into a conviction for sale of heroin. Where,
however, the possession antedated and was separate and
distinct from the sale, then these are separate crimes.
State v. Booker, supra.
- State v. Parker, 335 N.J. Super. (App. Div. 2000).
Although possession of a controlled dangerous substance
with intent to distribute within a school under N.J.S.A.
2C:35-7 and possession of a controlled dangerous
substance with intent to distribute within 500 feet of a
public park under N.J.S.A. 2C:35-7.1 are technically
different offenses, under the “flexible” approach
regarding merger, these two offenses must merge.
However, the parole ineligibility period under the school
zone offense survives the merger.- State v. Tahir Gregory, N.J. Super. 2001
W.L. 65065 (App. Div. 2001). Defendant’s conviction
for third degree possession of a controlled dangerous
substance with intent to distribute under N.J.S.A.
2C:35-5a(1) and - 5b(3), merges with his second degree
possession of a controlled dangerous substance with
intent to distribute within 500 feet of a public park under
N.J.S.A. 2C:35-7.1.
D. DEDR Penalty
In State v. Monzon, 300 N.J. Super. 173 (App. Div.
1997), defendant’s Drug Enforcement and Demand
Reduction (“DEDR”) penalty was properly vacated
based on defendant’s participation in a drug program
where payment for the costs of the program was made
through reduction of compensation earned during the
course of that program. Such reduction satisfied the
statutory criteria of N.J.S.A. 2C:35-15 and defendant
“actually paid” for the costs of the program.State v. Williams, 225 N.J. Super. 462 (Law Div.
1988) held that where defendant pleads guilty to a
second drug offense but is sentenced to a term one degree
lower to a third degree offense, the mandatory DEDR
penalty appropriate to a second degree offense must still
be imposed.VI. MISCELLANEOUS
State v. Lester, 271 N.J. Super. 289 (App. Div. 1994),
certif. denied, 142 N.J. 453 (1995), held that
maintaining a dwelling house as a narcotics nuisance in
violation of N.J.S.A. 24:21-21a(6), had not been
impliedly repealed by the enactment of Chapter 35 of
Title 2C. This provision of Title 24 was saved from repeal
by the language of N.J.S.A. 2C:35-1.2 because no statute
similar to this specific Title 24 violation was enacted in
the Comprehensive Drug Reform Act of 1987.The court in State in the Interest of A.A.M., 228 N.J.
Super. 9 (Law Div. 1988), held that possession with
intent to distribute CDS within a drug free school zone
constitutes a “Chart 1" offense for purpose of juvenile
waiver.