Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.
I have been charged with failure to turn over drugs (also Failure to make a lawful disposition) to a police officer from a motor vehicle stop. Is this a separate offense from possession of CDS. In this case the court ruled “failure to make lawful disposition” under N.J.S.A. 2C:35- 10(c) is not a lesser-included offense of possession of a CDS under N.J.S.A. 2C:35-10(a).
The facts are as follows:
On May 31, 2013, Detective Nicholas Bowen received an anonymous tip stating two females would leave a house on Broad Street in Salem. He was told they would “retrieve money from the . . . ATM machine at the Deepwater Credit Union . . . and walk back to purchase crack cocaine from [a] black male.” After receiving this information, Bowen started surveillance to corroborate the tip. Detective Bowen observed two females walk to Deepwater Credit Union, appear to withdraw money from the ATM, and walk toward the house on Broad Street. When Bowen called to one of the women to stop, they began running toward the house. Bowen chased after them, joined by Patrolman James Endres. When the women approached the door to the Broad Street house, one of them yelled something to the effect of, “It’s the cops. Toss your shit.” Bowen and Endres followed them into the house, where the officers found defendant, another male, and a female seated on a couch in the living room. Bowen observed the other male throw a cigarette pack into the dining room. Bowen and Endres retrieved the cigarette pack and discovered a crack pipe inside. They placed the other male under arrest. The officers’ attention was then drawn to defendant, who “became fidgety and kept looking around.” Both Detective Bowen and Patrolman Endres testified they saw defendant surreptitiously take off his hat and throw it behind the couch. The officers saw what appeared to be a crack rock near defendant’s feet. Defendant was placed under arrest. The officers then checked near the hat and found two additional pieces of crack cocaine.
The court then examined the statutory language of NJSA 2C:35-10(c) and found there is no basis in law, fact, or argument for the court to consider the ‘failure to turn over’ as a lesser included offense of the unlawful possession of CDS. The court also looked at the statutory construction of the standard criminal possession of CDS charge, as well as the ‘lesser included’ criminal code sections. The court reasoned as follows:
“N.J.S.A. 2C:35-10(a) provides: “It is unlawful for any person, knowingly or purposely, to obtain, or to possess, actually or constructively, a controlled dangerous substance or controlled substance analog.” Defendant contends he was entitled to an instruction on N.J.S.A. 2C:35-10(c) as a lesser- included offense. N.J.S.A. 2C:35-10(c) provides: Any person who knowingly obtains or possesses a controlled dangerous substance or controlled substance analog in violation of subsection a. of this section and who fails to voluntarily deliver the substance to the nearest law enforcement officer is guilty of a disorderly persons offense. Nothing in this subsection shall be construed to preclude a prosecution or conviction for any other offense defined in this title or any other statute. “On its face, the statute applies only to those who obtain or possess controlled dangerous substances in violation of N.J.S.A. 2C:35-10a.” State v. Patton, 133 N.J. 389, 398 (1993). To determine if failure to make a lawful disposition is a lesser-included offense of possession of a CDS, we look to N.J.S.A. 2C:1-8(d), which “governs lesser-included offenses.” State v. Maloney, 216 N.J. 91, 106 (2013). N.J.S.A. 2C:1-8(d) provides:
A defendant may be convicted of an offense included in an offense charged whether or not the included offense is an indictable offense. An offense is so included when:
(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
- (2) It consists of an attempt or conspiracy to commit the offense charged or to commit an offense otherwise included therein; or
- (3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices commission.
In addition, N.J.S.A. 2C:1-8(e) provides: “The not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the of the included offense.” [N.J.S.A. 2C:1-8(e)] has been characterized and construed as requiring not only a rational basis in the evidence for a jury to convict the defendant of the included offense but requiring also a rational basis in the evidence for a jury to acquit the defendant of the charged offense before the court may instruct the jury on an uncharged offense. [State v. Brent, 137 N.J. 107, 113-14 (1994).] Thus, a party seeking a lesser-included offense charge “(1) that the requested charge satisf[ies] the definition of an included offense set forth in N.J.S.A. 2C:1-8d, and (2) that there [is] a rational basis in the evidence to support a charge court shall defendant must show on that included offense.” Maloney, supra, 216 N.J. at 107 (quoting State v. Thomas, 187 N.J. 119, 131 (2006)).
N.J.S.A. 2C:35-10(c) is not a lesser-included offense of N.J.S.A. 2C:35-10(a) under any of the subsections of N.J.S.A. 2C:1-8(d). Subsection (d)(1) does not apply because N.J.S.A. 2C:35-10(c) requires both that the defendant knowingly possessed a CDS in violation of N.J.S.A. 2C:35-10(a) and that the defendant failed to deliver that substance to a law enforcement officer. Thus, N.J.S.A. 2C:35-10(c) requires a second element not required by N.J.S.A. 2C:35-10(a). Subsection (d)(2) is not applicable because N.J.S.A. 2C:35-10(c) involves neither conspiracy nor attempt. Subsection (d)(3) does not apply because N.J.S.A. 2C:35-10(c) requires a violation of N.J.S.A. 2C:35-10(a) and thus cannot be said to be satisfied by a lesser injury, risk, or culpability.
Indeed, the legislative history of N.J.S.A. 2C:35-10(c) shows it was enacted to give prosecutors “a method of facilitating ‘speedy trials’ by downgrading cases involving possession of CDS” under N.J.S.A. 2C:35-10(a). State v. Gredder, 319 N.J. Super. 420, 425 (App. Div. 1999). In Patton, our Supreme Court reviewed N.J.S.A. 2C:35-10(c)’s legislative history. After the 1987 enactment of the Comprehensive Drug Reform Act of 1986, there was “a dramatic increase in the number of drug arrests” which “exacerbated the pressure on the criminal courts.” Patton, supra, 133 N.J. at 393–94. “[T]he Supreme Court Task Force on Speedy Trial acknowledged that the caseload of the criminal-justice system could be reduced significantly by prosecutors exercising their discretion to refer matters to municipal court for prosecution as disorderly-persons offenses.” Id. at 394. The Task Force recommended the Legislature enact a statute “creating appropriate disorderly persons offenses for possession of small quantities of certain drugs . . . to permit the use of prosecutorial discretion in the charging and screening process.” Ibid. (quoting N.J. Supreme Court 1986 Judicial Conference on Speedy Trial, Report of the Committee on Delay Points and Problems Affecting Speedy Trial 53 (1986)). In 1988, the Legislature “implement[ed] th[at] recommendation” by amending N.J.S.A. 2C:35-10 to add subsection (c) for “use only as a mechanism to downgrade simple possession, an indictable offense, to a disorderly-persons offense.” Id. at 394, 401.
The court also examined the origins of N.J.S.A. 2C:35-10(c) and found the Legislature intended “‘to incorporate the crime now defined in [N.J.S.A. 2C:35-10(a)] without substantial change except for the penalty provisions'” in order “to provide prosecutors the option of charging a lesser offense under appropriate circumstances.” See N.A., supra, 355 N.J. Super. at 153 (citation omitted). For similar reasons, N.J.S.A. 2C:35-10(c) should not be charged as a lesser-included offense because “[s]ubmission of both offenses would involve the jury in the act of imposition of sentence.” See id. at 154.
The court also dove into the ultimate question; Is there a basis for giving the jury the standard jury charge for any “lesser included offense?” To do so the court reasoned, “to justify a lesser included offense instruction, a rational basis must exist in the evidence for a jury to acquit the defendant of the greater offense as well as to convict the defendant of the lesser, unindicted offense.” There could never be a rational basis for a jury to convict a defendant of violating N.J.S.A. 2C:35-10(c) while acquitting him of violating. In this case, the appellate panel found N.J.S.A. 2C:35-10(a), as a defendant must be “in violation of subsection a.” to violate N.J.S.A. 2C:35-10(c). Absent such a “rational basis,” it is inappropriate to instruct on N.J.S.A. 2C:35-10(c) as a lesser-included offense of N.J.S.A. 2C:35-10(a).
For the same reasons, the trial court was not required to instruct the jury on N.J.S.A. 2C:35-10(c) as a related offense. “A court may instruct on a related offense when ‘the defendant requests or consents to the related offense charge, and there is a rational basis in the evidence to sustain the related offense.'” Id. at 108 (quoting Thomas, supra, 187 N.J. at 133). Here, there was no rational basis for the jury to convict defendant of failure to make a lawful disposition but acquit him of possession of a CDS. Cf. id. Absent such a rational basis, giving an instruction on a related offense is improper because a trial court cannot charge a jury on any offense requested by the defendant or suggested by the evidence. A trial court should not “scour the statutes to determine if there are some uncharged offenses of which the defendant may be guilty. The prosecutor has the primary charging responsibility[.]”
The very current part of this court’s discussion is the fact that the New Jersey Judiciary, as of June 1, 2016 with an effective date of January 1, 2017, have enacted even greater Speedy Trial processes to quicken criminal trial dates, reduce pre-trial detention in the county jails, while enable greater release of defendants pending trial on lower level criminal offenses. The lynchpin of this ‘new’ speedier entire ‘speedy trial’ process is the determination of ‘which’ an arrested individual will be charged on; a Summons or Warrant. Under the new criminal Rules of Court it appears the prosecutor’s offices will be empowering police and court administrators to write Summons for these types of offenses which, most often will result in the routine simple drug possession of otherwise indictable types of CDS (cocaine, Heroin, ….), and failure to turn over these CDSs, being handled in the municipal courts of New Jersey.
The complete case can be found here.