Appellate Division holds that Failure to Make Lawful Disposition of CDS is not a Lesser Included Offense of Possession of CDS

The New Jersey Appellate Division held, in State v. Moorer, A-2922-14, decided December 29, 2016, that “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:35-1(a).

The court reasoned that 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) which governs lesser included offenses.  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.

The court pointed out that the legislative history of N.J.S.A. 2C:35-10(c)
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).  The court recognized that in State v. Patton, 133 N.J. 389, 398 (1993), the New Jersey 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 recognized a similar situation in State v. N.A., 355 N.J. Super. 143 (App. Div. 2002), certif. denied, 175 N.J. 434 (2003) in which it held that N.J.S.A. 9:6-3 was not a lesser-included offense of N.J.S.A. 2C:24-4(a).  Id. at 154.  The Legislature
enacted N.J.S.A. 2C:24-4(a) to make it a second-degree offense for a person having care of a child to “make [the] child an abused or neglected child as defined in” N.J.S.A. 9:6-3.  N.J.S.A. 2C:24-4(a).  N.J.S.A. 9:6-3 already made it a fourth
degree crime for such a person to abuse or neglect a child.  In enacting N.J.S.A. 2C:24-4(a), the Legislature’s “‘intent [wa]s to incorporate the crime now defined in[N.J.S.A.] 9:6-3 without substantial change except for the penalty provisions.'”  N.A.,
supra, 355 N.J. Super. at 153 (citation omitted).  The court found “a legislative intent that both statutes are to be preserved perhaps to provide prosecutors the option of charging a lesser offense under appropriate circumstances.”  Ibid.  “Under these unique circumstances, the court “concluded in N.A. that N.J.S.A. 9:6-3 “should not have been charged as a lesser included offense” of N.J.S.A. 2C:24-4(a).  Id. at 154.  “Submission of both offenses would involve the jury in the act of imposition of sentence.”  Ibid.  The court stressed that generally “a jury’s consideration of the evidence is confined to what, if any, offenses have been committed by the defendant rather than the penalty which may or must be imposed.”  Ibid.  “The rationale for this limitation is that sentencing information fails to help the jury in deciding the issue of guilt, distracts the jury by confusing the issues to be decided, and invites a
compromise verdict.”  Ibid.

The court stated that in enacting N.J.S.A. 2C:35-10(c), the Legislature similarly 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 reasoned that, “‘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.'”
State v. Funderburg, 225 N.J. 66, 81 (2016) (citation omitted); see, e.g., State v. Cagno, 211 N.J. 488, 522 (2012), cert. denied, __ U.S. __, 133 S. Ct. 877, 184 L. Ed. 2d 687 (2013).

The court pointed out that 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 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).

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