Territorial Applicability of the Drug-Induced Death Statute (Part 1)

On May 20, 2019, the New Jersey Supreme Court decided the Passaic County case of State v. Noel Ferguson. The principal issue was whether the State had territorial jurisdiction to prosecute a strict-liability drug induced death charge where a defendant sells heroin in New Jersey to someone who re-sells to a victim in New York.

Justice Albin wrote for a unanimous Court and held in relevant part: We first address whether the State can exert territorial jurisdiction over Ferguson and Potts for causing the drug-induced death of Cabral. See N.J.S.A. 2C:35-9. Because Cabral’s death from ingesting heroin occurred in New York (the result element), the only remaining issue for jurisdictional purposes under N.J.S.A. 2C:1-39(a)(1) is whether Ferguson and Potts distributed the heroin in New Jersey (the conduct element). Under the Comprehensive Drug Reform Act of 1987, the term “‘distribute’ means to deliver a controlled dangerous substance.” N.J.S.A. 2C:35-2. In turn, “‘delivery’ means the actual, constructive, or attempted transfer from one person to another of a controlled dangerous substance. Ibid.

As we concluded in State v. Davis (1975), “the Legislature intended each of certain specified components of a transaction or episode leading to and including the distribution of a controlled dangerous substance to be a distinct and separate offense. “Distribution and possession are distinct criminal offenses, not only in terms of the length of time each lasts, but also in terms of what particular stage of drug trafficking each represents.” Id. at 82. Possession pertains to the “retention” of a controlled dangerous substance, even if in the hands of a seller, whereas “distribution concentrates on the final transfer to a particular party.” Ibid.

I would expect the State to argue that the focus should be on the sale that was made in New Jersey with reckless disregard for the fact that the heroin would be re-sold and that the location of the ultimate re-sale is immaterial since the underlying crime is a strict liability offense. On the other hand, that would mean that everyone involved in the distribution chain from the producer to street-level dealer could be liable for a drug-induced death. That could include hundreds of people. It is unlikely that this result was contemplated by the Legislature.