We do not find the State’s arguments or its reliance on Brunty persuasive. Rather, the State’s position contravenes well-settled New Jersey law governing statutory interpretation, which “looks first to the plain language of the statute, seeking further guidance only to the extent that the Legislature’s intent cannot be derived from the words that it has chosen.” “Where a plain reading of the statute ‘leads to a clear and unambiguous result, then the interpretive process should end.”
N.J.S.A. 2C:35-2 defines “distribute” for purposes of N.J.S.A. 2C:35-9. “Distribute” means “to deliver other than by administering or dispensing a CDS or controlled substance analog.” In turn, “deliver” means “the actual, constructive, or attempted transfer from one person to another of a CDS or controlled substance analog, whether or not there is an agency relationship.” Ibid. Notably, possession of CDS with intent to distribute it is not included in the definitions of “distribute” or “delivery,” as the State would have it. Since the statutory language is not ambiguous, N.J.S.A. 2C:35-9 must be construed in accordance with its terms.
On the facts presented, it is undisputed that the actual transfer of the heroin by Ferguson and Potts to Cabral that allegedly resulted in Cabral’s death occurred in New York. Because N.J.S.A. 2C:35-9 makes clear, by its express terms, that “distribution” does not include possession with intent to distribute, the State has not met its burden of establishing that an “inference could reasonably be drawn placing the site of the crime within this State.”
Perhaps under N.J.S.A. 2C:1-3(a) the result we reach might be different if the evidence in support of the indictment were sufficient to create an inference that Ferguson or Potts engaged in a conspiracy with Byrd in New Jersey, or otherwise acted as Byrd’s agent or accomplice, to distribute the heroin to Cabral in New York. That is not the case here. Accordingly, we conclude the State is without territorial jurisdiction to prosecute Ferguson and Potts for strict liability drug-induced death under N.J.S.A. 2C:35-9.
The Court offers direction to the State as far as what charges to bring in order to survive a jurisdictional challenge after the case is represented to the grand jury and presumably indicted. Still, presenting the case under a conspiracy or accomplice liability theory raises different issues. One is the incongruence between a conspiracy and strict liability charge. Another is that our courts disfavor the charging of possessory offenses under an accomplice liability theory. Thus, the State might choose to appeal this decision to the New Jersey Supreme Court before representing a case to the grand jury that might get struck down on appeal again.
