STATE OF NEW JERSEY VS. HARRY J. WOLF, JR.(14-10-0929, CAPE MAY COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1845-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HARRY J. WOLF, JR., a/k/a
HARRY MCGONIGAL, RAYMOND WOLF,
HARRY WOLF, HARRY J. WOLF, HAROLD WOLF,
RAYMOND W. FOX, HARRY J. MCGONICAL,
RAYMOND W. WOLF, and RICHARD
HERRING,
Defendant-Appellant.
__________________________________________
Submitted September 27, 2017 – Decided October 23, 2017
Before Judges Alvarez, Currier, and Geiger
On appeal from the Superior Court of New
Jersey, Law Division, Cape May County,
Indictment No. 14-10-0929.
Joseph E. Krakora, Public Defender, attorney
for appellant (Jay L. Wilensky, Assistant
Deputy Public Defender, of counsel and on the
brief.
Christopher S. Porrino, Attorney General,
attorney for respondent (Steven A. Yomtov,
Deputy Attorney General, of counsel and on the
brief).
PER CURIAM
Defendant Harry J. Wolf, Jr., filed a motion in the Law
Division to dismiss an indictment charging him with possession of
a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1), on
the basis that the Overdose Protection Act (OPA), N.J.S.A. 2C:35-
31, barred the prosecution. The motion was denied. He then
entered a guilty plea and, pursuant to the agreement, was sentenced
to a four-year state prison term concurrent to time he was serving
on unrelated charges. For the reasons stated by Judge Donna M.
Taylor, we affirm.
I.
The circumstances leading to defendant's arrest and
prosecution are undisputed and straightforward. On September 8,
2014, a Middle Township patrolman was dispatched to a local motel
as a result of an anonymous call about a "possible intoxicated
subject." He assumed the call concerned removing "a possibly
drunk trespasser from the property." After the officer arrived,
he checked defendant's name and learned that he had an outstanding
warrant. In the process of being taken into custody, four wax
folds of heroin, as well as drug paraphernalia,1 were discovered
on defendant's person.
1
The original charges included disorderly persons possession of
drug paraphernalia, N.J.S.A. 2C:36-2, and possession of a
hypodermic needle, N.J.S.A. 2C:36-6. Both were dismissed in accord
with the plea agreement.
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At the station, the patrolman concluded defendant was under
the influence of a narcotic because "[h]is pupils appeared
constricted, his eyelids were droopy, his speech was slow and
slurred, and he was 'on the nod,'" by which the officer meant that
defendant would appear to fall asleep, but would easily awaken.
Defendant went through the booking process without assistance or
incident. Concerned the county jail would not accept a prisoner
clearly under the influence, the officer took defendant to the
local hospital where he was administered two dosages of naloxone
hydrochloride. Once medically cleared, he was lodged in the county
jail.
In her consideration of defendant's motion to dismiss the
indictment, Judge Taylor began her analysis by stating that OPA
protects "only those individuals who are actually experiencing the
deadly throes of overdose or a good Samaritan rendering aid
. . . ." She added that "mere intoxication will not suffice to
invoke the broad protection granted under the act." Judge Taylor
further observed that the statute defined drug overdose as "an
acute condition[,] includ[ing] such debilitating maladies as
physical illness, coma, mania, hysteria, or death." The condition
must be "severe and life threatening." Absent those extreme
states, a person does not suffer from a "drug overdose" and is not
immunized by the Act.
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The judge opined that had the civilian caller been concerned
about defendant's medical condition, that concern would have been
communicated to the dispatcher, and by the dispatcher to the
responding officer. After the administration of the antidote,
defendant was medically cleared and promptly lodged on the warrant.
Thus the indictment was neither manifestly deficient nor palpably
defective. She denied the motion.
On appeal, defendant raises one point:2
POINT I
THE DENIAL OF DISMISSAL OF A CHARGE OF SIMPLE
POSSESSION OF CDS, FILED AFTER POLICE CONTACT
WHICH WAS INITIATED BY A CALL CONCERNING THE
DEFENDANT'S APPARENT INTOXICATION, WAS
CONTRARY TO THE MEANING AND PURPOSE OF THE
OVERDOSE PROTECTION ACT AND MUST BE REVERSED.
OPA states in pertinent part:
a. A person who experiences a drug overdose
and who seeks medical assistance or is the
subject of a good faith request for medical
assistance . . . shall not be:
(1) arrested, charged, prosecuted or
convicted for obtaining, possessing, using,
being under the influence of, or failing to
make lawful disposition of, a [CDS]. . . .
[N.J.S.A. 2C:35-31.]
2
A second point in the brief regarding a discrepancy between the
judgment of conviction and the plea bargain as to concurrency was
resolved by way of a brief remand.
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II.
Defendant contends that we should reverse the decision, and
address it de novo, purely as a question of law. See State v.
Vargas, 213 N.J. 301, 327 (citing State v. Gandhi, 201 N.J. 161,
176 (2010)). Additionally, he contends that the standard for
dismissal of an indictment found in State v. Hogan, 144 N.J. 216(1996), as correctly expressed by the trial judge, is inapplicable.
He argues that the issue is not whether errors and omissions
tainted the grand jury's indictment, but whether dismissal is
legally mandated. We disagree.
Hogan's standard for dismissal of an indictment – that
indictments should not be dismissed by a trial judge in his or her
discretion, except upon the clearest and plainest of grounds –
also applies to questions of law. Id. at 228-229. As the Court
said in Hogan, "the decision whether to dismiss an indictment lies
within the discretion of the trial court . . . and that exercise
of discretionary authority will not be disturbed on appeal unless
it has been clearly abused." Id. at 229. When a judge dismisses
an indictment, that dismissal requires the clearest and plainest
of grounds in order for the dismissal to be affirmed – no matter
the reason. There is no basis for concluding otherwise, or drawing
a distinction between legal objections to an indictment, or other
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grounds for dismissal. Nor do we agree that the issue posed is
purely one of law.
A principal thread in defendant's position is that
defendant's intoxication was equivalent to an overdose. Nothing
that we see from this record would substantiate that claim, but
it is patently a question of fact. Although the notion that
defendant required medical clearance before his incarceration in
a county facility is relatively new, it appears to be a reasonable
step to ensure the safety of a person being taken into custody.
The hospitalization took place solely to address defendant's
intoxication before incarceration, manifesting the authorities'
exercise of reasonable prudence.
Defendant's argument does not negate the trial judge's
conclusion, which the record strongly supports. No one thought
defendant was suffering the aftereffects of an overdose. If he
did not seem to be in the throes of physical distress, the law
simply does not apply. The legislature intended OPA to protect
only those persons suffering from medical distress after an
overdose. If the legislature had intended to include those who
were merely under the influence, the legislature could have readily
said so. They did not.
Hence, we agree with Judge Taylor that this scenario is not
included in the plain and unambiguous language of OPA.
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Affirmed.
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