Inclusive language is used elsewhere in N.J.S.A. 2C:35-5(b)(1) to authorize combining substances for the purpose of achieving the five-ounce weight: “Heroin, or its analog, or coca leaves and any salt, compound, derivative . . . in a quantity of five ounces or more including any adulterants or dilutants.” (Emphasis added). The Legislature thus intended for both heroin and cocaine to be aggregated with any of its respective additives when determining the weight of the substance.
The plain language of N.J.S.A. 2C:35-5(c) further strongly supports Judge Clark’s decision. N.J.S.A. 2C:35-5(c) states, “Where the degree of the offense depends on the quantity of the substance, the quantity involved in individual acts of distribution, dispensing or possessing with intent to distribute may be aggregated in determining the grade of the offense.” (Emphasis added). This subsection again refers to “substance” in the singular form. There are no facial ambiguities in N.J.S.A. 2C:35-5(c) because the plain meaning is clear: a single substance, possessed on different occasions with the intent to distribute, may be aggregated to reach the five-ounce, first-degree weight. Nothing in the statute supports the State’s interpretation that the weights of different drugs, such as heroin and cocaine, may be aggregated to reach the five-ounce, first-degree weight. The plain meaning of the N.J.S.A. 2C:35-5(c) precludes the State’s interpretation.
We also note that the State could find no other instance where it had sought to combine different drugs to obtain first-degree weight in the approximately thirty years this statute has been in existence. The State seeks the discretion to aggregate different drugs because consecutive second-degree sentences, as would be permissible if defendant were convicted without such aggregation, would not include the mandatory minimum sentence required by the first-degree drug sentence (except as waived by the State). N.J.S.A. 2C:35-5(b)(1); 2C:35-12. However, the statute does not give the State that discretion.
We also reject the State’s position based on the rule of lenity. Judge Clark noted, “where it is not clear whether something is permitted under a criminal statute, the benefit of this lack of clarity should accrue to the defendant.” If an ambiguity in a criminal statute is not resolved by reviewing the text and extrinsic sources, the rule of lenity dictates that the ambiguities must be interpreted in favor of the defendant. Thus, all penal statutes are to be strictly construed. Any doubt as to whether N.J.S.A. 2C:35-5(c) should be interpreted to allow the aggregation of different drugs to increase the degree of crime must be resolved in favor of defendant.”