RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3720-15T2
STATE OF NEW JERSEY,
Plaintiff-Appellant, APPROVED FOR PUBLICATION
v. November 14, 2016
APPELLATE DIVISION
RICHARD RIVASTINEO,
Defendant-Respondent.
__________________________
Argued October 5, 2016 – Decided November 14, 2016
Before Judges Reisner, Koblitz and Sumners.
On appeal from an interlocutory order of the
Superior Court of New Jersey, Law Division,
Passaic County, Indictment No. 15-09-0129.
Steven A. Yomtov, Deputy Attorney General,
argued the cause for appellant (Christopher
S. Porrino, Attorney General, attorney; Garima
Joshi, Deputy Attorney General, of counsel and
on the brief).
John Douard, Assistant Deputy Public Defender,
argued the cause for respondent (Joseph E.
Krakora, Public Defender, attorney; Mr.
Douard, of counsel and on the brief).
The opinion of the court was delivered by
KOBLITZ, J.A.D.
The State, with leave granted, appeals from an interlocutory
order of March 24, 2016 dismissing two counts of the indictment
because the motion judge concluded that the State is precluded
from aggregating the weight of cocaine and heroin to achieve a
higher degree of crime pursuant to N.J.S.A. 2C:35-5(c). Based on
the plain language of the statute as well as the rule of lenity,
we affirm.
On September 25, 2015, a State Grand Jury indicted defendant
on six counts of drug-related offenses: second-degree conspiracy
with one or more persons to distribute or possess cocaine and/or
heroin, N.J.S.A. 2C:5-2 (count one); first-degree possession with
intent to distribute five ounces or more of heroin and cocaine,
N.J.S.A. 2C:35-5(a)(1), 5(b)(1) and 5(c) (count two); first-degree
distribution of five ounces or more of heroin and cocaine, N.J.S.A.
2C:35-5(a)(1), 5(b)(1) and 5(c)(count three); two counts of third-
degree possession of a controlled dangerous substance (CDS), one
count relating to cocaine and one to heroin, N.J.S.A. 2C:35-
10(a)(1) (counts four and five); and fourth-degree possession with
intent to distribute drug paraphernalia N.J.S.A. 2C:36-3 (count
six).
The State aggregated the weight of 3.6 ounces of cocaine plus
1.8 ounces of heroin seized from defendant during drug sales on
different dates to charge defendant with first-degree possession
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of a CDS with the intent to distribute (count two) and first-
degree distribution of a CDS (count three), both of which require
a weight in excess of five ounces.
Defendant moved to dismiss counts two and three of the
indictment on the grounds that the State improperly aggregated the
quantities of two different drugs for the purpose of charging him
with first-degree crimes. On March 24, 2016, Criminal Presiding
Judge Marilyn C. Clark granted defendant's motion to dismiss both
counts, determining that N.J.S.A. 2C:35-5(c) does not permit
aggregation of different drugs to charge a higher degree of crime.
We owe no deference to the legal decisions of the trial court. In
re Application for a Retail Firearms Dealer's License Renewal, 445
N.J. Super. 80, 89 (App. Div. 2016) (citing Manalapan Realty, L.P.
v. Twp. Comm., 140 N.J. 366, 378 (1995)). After reviewing Judge
Clark's reasoning, however, we agree with her analysis, which we
substantially follow in this opinion.
The State argues that because cocaine and heroin are included
in the same statutory subsection, N.J.S.A. 2C:35-5(b), aggregation
of these drugs is appropriate within the meaning and intent of
N.J.S.A. 2C:35-5(c) and constitutes a proper exercise of
prosecutorial discretion. In rejecting this argument, Judge Clark
examined the plain language of the statute.
3 A-3720-15T2
N.J.S.A. 2C:35-5(a)(1) states that it is unlawful "[t]o
manufacture, distribute, or dispense, or to possess . . . with
intent to manufacture, distribute or dispense, a controlled
dangerous substance." Pursuant to N.J.S.A. 2C:35-5(b)(1): "Any
person who violates subsection a. with respect to: Heroin, or its
analog, or coca leaves and any salt, compound, derivative . . .
in a quantity of five ounces or more including any adulterants or
dilutants is guilty of a crime of the first degree." (Emphasis
added.)
Judge Clark determined that N.J.S.A. 2C:35-5(c) permits
aggregation of the same substance possessed or sold on different
dates to reach the five-ounce minimum weight requirement for a
first-degree charge. The statute, however, refers to substance,
not substances. The judge noted that the singular statutory
language provides a basis for aggregating quantities of the same
substance, not quantities of different substances. Judge Clark
further supported her conclusion with our holding that possession
of different drugs with the intent to distribute constitutes
multiple offenses that do not merge. State v. Jordan, 235 N.J.
Super. 517, 520 (App. Div.), certif. denied, 118 N.J. 224 (1989).
N.J.S.A. 2C:35-5(c) states:
Where the degree of the offense for violation
of this section depends on the quantity of the
substance, the quantity involved shall be
determined by the trier of fact. Where the
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indictment or accusation so provides, the
quantity involved in individual acts of
manufacturing, distribution, dispensing or
possessing with intent to distribute may be
aggregated in determining the grade of the
offense, whether distribution or dispensing is
to the same person or several persons . . . .
[Emphasis added.]
The court's goal in statutory interpretation is to determine
and "effectuate the Legislature's intent." State v. Shelley, 205
N.J. 320, 323 (2011). This inquiry must begin with the plain
"language of the statute, giving the terms used therein their
ordinary and accepted meaning." Ibid. "When the Legislature's
chosen words lead to one clear and unambiguous result, the
interpretive process comes to a close, without the need to consider
extrinsic aids." Ibid. "We will not 'rewrite a plainly-written
enactment of the Legislature [or] presume that the Legislature
intended something other than that expressed by way of the plain
language.'" Marino v. Marino, 200 N.J. 315, 329 (2009) (quoting
O'Connell v. State, 171 N.J. 484, 488 (2002) (alteration in
original)).
The plain language of N.J.S.A. 2C:35-5 supports the
interpretation that the aggregation of the weights of different
substances for charging purposes is not permitted. N.J.S.A. 2C:35-
5(a)(1) states that it is unlawful to possess with the intent to
distribute "a controlled dangerous substance." (Emphasis added).
5 A-3720-15T2
N.J.S.A. 2C:35-5(a)(2) criminalizes the creation, distribution or
possession with the intent to distribute of "a counterfeit
controlled dangerous substance." (Emphasis added). The use of
the singular "substance," in N.J.S.A. 2C:35-5(a)(1)-(2) plainly
refers to only one drug.
The text of N.J.S.A. 2C:35-5(b)(1) further supports Judge
Clark's interpretation that N.J.S.A. 2C:35-5(c) does not authorize
the aggregation of multiple drugs for charging purposes. Pursuant
to N.J.S.A. 2C:35-5(b)(1), it is a first-degree crime to "violate[]
subsection a. with respect to: Heroin, or its analog, or coca
leaves . . . ." (Emphasis added).
"[W]hen constructing the Legislature's words, every effort
should be made to avoid rendering any part of the statute
superfluous." Opderbeck v. Midland Park Bd. of Educ., 442 N.J.
Super. 40, 56 (App. Div.), certif. denied, 223 N.J. 555 (2015)
(quoting State in the Interest of K.O., 217 N.J. 83, 91 (2014)).
The Legislature's use of "or" evidences its intent to refer to
heroin and cocaine in the alternative, and indicates that
possession of the two substances is to be charged separately.
Inclusive language is used elsewhere in N.J.S.A. 2C:35-
5(b)(1) to authorize combining substances for the purpose of
achieving the five-ounce weight: "Heroin, or its analog, or coca
leaves and any salt, compound, derivative . . . in a quantity of
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five ounces or more including any adulterants or dilutants."
(Emphasis added). The Legislature thus intended for both heroin
and cocaine to be aggregated with any of its respective additives
when determining the weight of the substance.
The plain language of N.J.S.A. 2C:35-5(c) further strongly
supports Judge Clark's decision. N.J.S.A. 2C:35-5(c) states,
"Where the degree of the offense . . . depends on the quantity of
the substance . . . . [T]he quantity involved in individual acts
of . . . distribution, dispensing or possessing with intent to
distribute may be aggregated in determining the grade of the
offense." (Emphasis added). This subsection again refers to
"substance" in the singular form. There are no facial ambiguities
in N.J.S.A. 2C:35-5(c) because the plain meaning is clear: a single
substance, possessed on different occasions with the intent to
distribute, may be aggregated to reach the five-ounce, first-
degree weight. Nothing in the statute supports the State's
interpretation that the weights of different drugs, such as heroin
and cocaine, may be aggregated to reach the five-ounce, first-
degree weight. The plain meaning of the N.J.S.A. 2C:35-5(c)
precludes the State's interpretation.
We also note that the State could find no other instance
where it had sought to combine different drugs to obtain first-
degree weight in the approximately thirty years this statute has
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been in existence.1 The State seeks the discretion to aggregate
different drugs because consecutive second-degree sentences, as
would be permissible if defendant were convicted without such
aggregation, would not include the mandatory minimum sentence
required by the first-degree drug sentence (except as waived by
the State). N.J.S.A. 2C:35-5(b)(1); 2C:35-12. However, the
statute does not five the State that discretion.
We also reject the State's position based on the rule of
lenity. Judge Clark noted, "where it is not clear whether
something is permitted under a criminal statute, the benefit of
this lack of clarity should accrue to the defendant." If an
ambiguity in a criminal statute is not resolved by reviewing the
text and extrinsic sources, the rule of lenity dictates that the
ambiguities must be interpreted in favor of the defendant. State
v. Sumulikoski, 221 N.J. 93, 110 (2015). Thus, "all penal statutes
are to be strictly construed." State v. Twiggs, 445 N.J. Super.
23, 36 (App. Div. 2016) (citing State v. D.A., 191 N.J. 158, 164
(2007)).
Any doubt as to whether N.J.S.A. 2C:35-5(c) should be
interpreted to allow the aggregation of different drugs to increase
1
The statute became effective June 22, 1987. Judge Clark stated
that "this is the first indictment I have ever seen in my years
on the bench that has ever combined different CDS[s] for the
purpose of aggregation."
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the degree of crime must be resolved in favor of defendant. The
rule of lenity coupled with the plain reading of the statute fully
supports Judge Clark's dismissal of counts two and three of the
indictment.
Affirmed.
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