                     NOT FOR PUBLICATION WITHOUT THE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.

                                    2                           A-1845-15T1
      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.

                                         3                               A-1845-15T1
     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.

                                 4                          A-1845-15T1
                                  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



                                   5                               A-1845-15T1
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.

                                           6                                   A-1845-15T1
Affirmed.




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