State v. Patton

POLLOCK, Justice,

dissenting.

I agree with the majority that N.J.S.A. 2C:35-10c violates defendant’s privilege against self-incrimination as guaranteed by the common law of this State and by the Fifth Amendment of the United States Constitution. I respectfully disagree, however, that engrafting use-and fruits-immunity on the statute is consistent with the legislative intent. Ante at 402, 627 A.2d at 1119. With one exception, I dissent substantially for the reasons set forth in the opinion of the Appellate Division, 256 N.J.Super. 413 , 607 A.2d 191 (1992). The exception is that I find the statute facially unconstitutional.

One need only compare the words of the statute with the majority opinion to see that they are inconsistent. The statute states that “[njothing in this subsection shall be construed to preclude a prosecution or conviction for any other offense defined in this title or any other statute.” The majority, however, interprets this language to mean that when enacting N.J.S.A. 2C:35-10c, the Legislature intended to provide “transactional immunity for section 10 offenses to persons complying with its provisions, *404 and use and derivative-use immunity in respect of other offenses.” Ante at 402, 627 A.2d at 1119. Nothing in the history or language of the statute supports the majority’s interpretation.

To bridge the gap between the statutory language and its construction, the majority relies on the perceived need to downgrade drug eases to disorderly-persons offenses to relieve criminal-case congestion. The majority reasons that the statute meets this need by permitting prosecutors to downgrade simple possession, an indictable offense, to a disorderly-persons offense. Ante at 394, 627 A.2d at 1115. To support its reasoning, the majority points to the Attorney General’s statement at oral argument that “no defendants have been charged with a violation of that subsection except for those defendants whose charges were downgraded from an original charge of simple possession.” Ibid. According to the majority, therefore, an otherwise-unconstitutional criminal statute is made constitutional not by enforcing it according to its terms but by using it as a means to induce pleas to lesser offenses for the ulterior, albeit benign, purpose of reducing court congestion.

The statutory language makes clear that the Legislature intended not that the statute would be used to obtain convictions for lesser offenses but that its use would not inhibit prosecution for more serious offenses. Nothing supports the notion that the Legislature considered the grant of immunity that the majority so generously provides. The Appellate Division correctly wrote: “[W]e cannot confidently conclude that the Legislature would have wanted to provide this disorderly persons ‘downgrade option’ if it had the potential of forestalling or impairing prosecutions for more serious offenses.” 256 N.J.Super. at 421 , 607 A.2d 191 .

As the State concedes, when the Legislature seeks to provide immunity from prosecution for the compelled surrender of incriminating evidence, it knows how to do so. The Penal Code is replete with statutes demonstrating that the Legislature knows how to terminate criminal liability for compelled surrender of incriminating evidence when it so intends. See, e.g., N.J.S.A. 2C:5-2e *405 (person may terminate liability for conspiracy by renouncing further participation and by informing law enforcement of existence of conspiracy and participation in it); N.J.S.A. 2C:58-7 (person unlawfully possessing explosive or destructive device may terminate liability by notifying police); N.J.S.A. 2C:17-6b (person possessing for unlawful purpose automobile part with altered serial number is guilty unless he or she files statement with authorities), as construed in State v. Davis, 244 N.J.Super. 180 , 581 A.2d 1333 (App.Div.1990).

Neither the majority nor the State has identified a single case in which a court, absent specific statutory authorization, has granted use immunity to override a person’s assertion of the privilege against self-incrimination. Indeed, without such authorization, courts have declined to grant use immunity to override the privilege. See Whippany Paper Board Co. v. Alfano, 176 N.J.Super. 363, 370 , 423 A.2d 648 (App.Div.1980) (“But under New Jersey law use immunity may be granted only in criminal cases at the request of a county prosecutor with the consent of the Attorney General or at the direct request of the Attorney General. N.J.S.A. 2A:81-17.3.” (footnote omitted)); see also, e.g., Kastigar v. United States, 406 U.S. 441 , 92 S.Ct. 1653 , 32 L.Ed.2d 212 (1972) (limiting scope of immunity provided by 18 U.S.C.A §§ 6002, 6003); Murphy v. Waterfront Comm’n, 378 U.S. 52 , 84 S.Ct. 1594 , 12 L.Ed.2d 678 (1964) (immunity provided under state law (N.J.S.A. 32:23-86(5)) affords immunity from state and federal prosecution); State v. Strong, 110 N.J. 583 , 542 A.2d 866 (1988) (determining scope of immunity from prosecution under N.J.S.A 2A:81-17.3, which prohibits State from using evidence against person that is “directly or indirectly derived” from his or her own compelled testimony); cf. Marchetti v. United States, 390 U.S. 39 , 88 S.Ct. 697 , 19 L.Ed.2d 889 (1968) (declining to read immunity into unconstitutional taxation statute because Court was “entirely certain that the Constitution has entrusted Congress, and not to this Court, the task of striking an appropriate balance____”). Here, however, without any legislative support, the majority has concocted a mixture of transactional, use, and derivative-use im *406 munity to vitiate defendant’s privilege. In sum, I believe that the majority has fashioned the statute to suit its purposes, not those of the Legislature.

I part company with the Appellate Division on the issue of the facial unconstitutionality of the statute. A statute is facially unconstitutional if “the Constitution is necessarily violated every time the law is enforced.” Ran-Dav’s County Kosher, Inc. v. State, 129 N.J. 141, 174-75 , 608 A.2d 1353 (1992) (Stein, J., dissenting); Steffel v. Thompson, 415 U.S. 452, 474 , 94 S.Ct. 1209, 1223 , 39 L.Ed.2d 505, 522-25 (1974) (finding statute invalid in toto when “incapable of any valid application.”). The critical question is not whether the State has chosen to apply the statute in a eonstitutionally-invalid manner but rather whether compliance with the statute is possible without self-incrimination. Subsection c applies to a person who “knowingly obtains or possesses a controlled dangerous substance or controlled substance analog in violation of subsection a____” Simply put, the statute applies only to persons who unlawfully possess the drugs. To comply with subsection e, a defendant must admit commission of the more serious offense of possession. N.J.S.A. 2C:35-10a. As the majority concedes: “A possessor will be providing law-enforcement authorities with tangible evidence that he or she is guilty of possession and perhaps more serious offenses.” Ante at 398, 627 A.2d at 1117. Compliance with the statute necessarily provides incriminating evidence of more serious crimes. In every instance in which a person complied with the statute, the application of the statute would violate that person’s privilege against self-incrimination. The statute, therefore, is facially invalid.'

Justices CLIFFORD and HANDLER join in this opinion.