Different Drug Aggregation: Part 1

On November 11, 2016, in the case of State v. Rivastineo, the Appellate Division was called upon to decide whether the State is permitted to combine the weight of different drugs seized from a defendant in order to charge a higher degree of crime. In relevant part, the Court held that:

“The court’s goal in statutory interpretation is to determine and effectuate the Legislature’s intent. This inquiry must begin with the plain language of the statute, giving the terms used therein their ordinary and accepted meaning. 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. 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.

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). 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).

When constructing the Legislature’s words, every effort should be made to avoid rendering any part of the statute superfluous. 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.