State v. Gonzalez

In State v. Gonzalez, 123 N.J. 462, 464, 588 A.2d 816 (1991), the New Jersey Supreme Court reversed on Judge Skillman's dissent and held that third- or fourth-degree Section 5 convictions merged into convictions under N.J.S.A. 2C:35-7 (Section 7) for the sale or distribution of a controlled dangerous substance within 1000 feet of a school. In reaching that result, the Court relied upon Judge Skillman's statutory interpretation analysis concluding that Section 7's antimerger provision barred the merger of convictions under that section into convictions under Section 5, but did not apply to bar the merger of convictions under Section 5 into convictions under Section 7 Ibid. Judge Skillman's analysis recognized two factors which are germane to our consideration of the issue under review. In determining the legislative intent of Section 7's antimerger provision, he first observed that "the essential objective of Section 7 is to impose a mandatory period of parole ineligibility upon any person who commits one of the specified drug offenses within 1,000 feet of school property or a school bus." State v. Gonzalez, 241 N.J. Super. 92, 101, 574 A.2d 487(App.Div.) (Skillman, J., dissenting), certif. denied, 122 N.J. 400, 585 A.2d 399 (1990), rev'd, 123 N.J. 462, 588 A.2d 816 (1991). He then concluded that the Legislature did not intend to preclude the merger of a Section 5 conviction into a Section 7 conviction, as there was no reciprocal antimerger provision in Section 5, a legislative prerogative commonly utilized in other statutory schemes. Id. at 102, 574 A.2d 487 (noting the reciprocal antimerger provisions of N.J.S.A. 2C:35-3 and N.J.S.A. 2C:35-6). The omission of any antimerger provision in Section 5 thus led Judge Skillman to conclude that "the Legislature was satisfied to leave questions of the merger of Section 5 convictions into Section 7 convictions to be decided in accordance with the general principles of merger set forth in N.J.S.A. 2C:1-8a." Id. at 102-03, 574 A.2d 487. Gonzalez involved the merger of a third-degree Section 5 conviction. In adopting Judge Skillman's dissent, the Court explicitly reserved for the future the question of whether first- and second-degree Section 5 offenses would also merge into Section 7 convictions. 123 N.J. at 464-65, 588 A.2d 816.