dissenting.
In this appeal, the majority sustains the dismissal of an indictment charging defendant with first-degree strict liability for drug-induced death, in violation of N.J.S.A. 2C:35-9; second-degree reckless manslaughter, in violation of N.J.S.A. 2C:11-4(b); and third-degree distribution of a controlled dangerous substance, in violation of N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3), charges which arose as a result of defendant’s purchase and distribution of heroin to his friend Daniel Shore and Shore’s death resulting from his ingestion of that heroin. According to the majority, “the evidence [before the grand jury] revealed only that defendant and Shore were joint purchasers and possessors of the heroin and therefore no act of distribution occurred between the two.” Ante, 188 N.J. at 5, 902 A.2d at 862 (2006). For that reason, the majority concludes that “the trial court did not abuse its discretion in dismissing the distribution and strict liability for drug-induced death charges.” Ante, 188 N.J. at 5, 920 A.2d at 862 (2006). For the reasons aptly explained by the Appellate Division, I respectfully dissent.
Reversing the trial court’s dismissal of the indictment in this case, the Appellate Division noted that
both the Constitution and common law of this State recognize the independence of the grand jury. For this reason courts are reluctant to intervene in the indictment process. It is well-established that an indictment should be disturbed only on the clearest and plainest ground, and only when it is manifestly deficient or palpably defective. The quantity and quality of evidence presented to the grand jury need *22not be great to uphold an indictment. If the indictment is clear on its face, there need be only some evidence as to the elements of each offense. Moreover, the evidence presented may be largely or even wholly hearsay testimony.
[(citations and internal quotation marks omitted).]
Based on those core concepts, the Appellate Division identified the issue for resolution as “whether the evidence received by the grand jury was sufficient for a finding of probable cause on the element of distribution necessary to the [first-degree strict liability for drug-induced death] and [third-degree distribution of a controlled dangerous substance] counts of the indictment.”
That analysis led the Appellate Division directly to a discussion of the two cases principally relied on by the majority: United States v. Swiderski, 548 F.2d 445 (2nd Cir.1977), and State v. Lopez, 359 N.J.Super. 222, 819 A.2d 486 (App.Div.), certif. granted sub nom., State v. Garcia, 177 N.J. 576, 832 A.2d 326, appeal dismissed, 178 N.J. 372, 840 A.2d 257 (2003). Although the panel endorsed the holdings in both Swiderski and Lopez, that is, that joint possession of controlled substances is inconsistent with the intent to distribute, the Appellate Division properly focused on a substantive, and ultimately conclusive, distinction not addressed by the majority: the procedural posture of this case. Noting that Swiderski and Lopez both involved the appellate review of convictions after trial and distinguishing this ease because it involved a pretrial dismissal of the indictment, the panel explained that it “decline[d] to read Lopez to hold that the sharing of drugs, the pooling of money or the mere presence at the scene of a drug transaction constitutes joint possession as a matter of law.” Respecting the constitutional sanctity of the grand jury process, the Appellate Division concluded that “[t]he issue is primarily factual in nature and properly reserved for the factfinder.”
I am entirely in accord with Smderski’s, Lopez’s, the majority’s and the panel’s legal reasoning that the joint possession of controlled substances is inconsistent with the intent to distribute statutorily required for the crimes for which defendant stands charged. However, I part company with the majority’s conclusion because, as the Appellate Division correctly acknowledged, great *23deference is due to our constitutionally mandated grand jury process. Unless the basic protective guidelines applied to that process are violated, and there is no intimation here that they were violated in any way, the adversary process started by an indictment must be allowed to proceed. Viewed differently, the issue of whether defendant’s and his victim’s possession of the heroin that claimed that victim’s life was joint is a matter of defense at trial, and was not an element of the charges returned against defendant. Therefore, the resolution of this issue should not be addressed prematurely via a motion to dismiss the indictment, but at the ripe time for the determination of defenses: at trial.
I respectfully dissent.
For reversal and remandment — Chief Justice PORITZ, and Justices LONG, LaVECCHIA, ZAZZALI, ALBIN and WALLACE — 6.
For affirmance — Justice RIVERA-SOTO — 1.