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State v. Burgos

Decided: December 28, 1992.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
NYDIA BURGOS, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Essex County.

Michels, Baime and Wallace. The opinion of the court was delivered by Wallace, J.s.c. (temporarily assigned).

Wallace

Following a jury trial defendant, Nydia Burgos, was found guilty of third-degree conspiracy to distribute a controlled dangerous substance, cocaine, contrary to N.J.S.A. 2C:35-5 and 2C:5-2, (Count One); third-degree distribution of cocaine, contrary to N.J.S.A. 2C:35-5b, (Count Two); and third-degree distribution of cocaine within 1,000 feet of school property, contrary to N.J.S.A. 2C:35-7, (Count Three). After merging Count One into Count Two, the trial Judge sentenced defendant to a five-year prison term on Count Two and imposed a consecutive five-year prison term with a three-year period of parole ineligibility on Count Three. Appropriate penalties and license suspension were imposed. Defendant seeks a reversal of her conviction and sentence imposed on the following grounds set forth in her brief.

POINT I:

THE COURT IMPROPERLY ALLOWED THE JURY TO HEAR THAT DEFENDANT HAD CHARGES DROPPED PURSUANT TO PLEA BARGAIN.

POINT II:

THE "WITHIN 1,000 FEET OF ANY SCHOOL PROPERTY" PROVISION OF N.J.S.A. 2C:35-7 VIOLATES BOTH THE STATE AND FEDERAL CONSTITUTIONS FACIALLY AND AS APPLIED (U.S. CONST. AMEND. V., XIV; N.J. CONST. (1947) ART. I, PAR. 1 .

POINT III:

THE TRIAL COURT SHOULD HAVE MERGED THE FIRST TWO COUNTS INTO THE THIRD, DISTRIBUTION OF C.D.S. WITHIN 1,000 FEET OF SCHOOL PROPERTY.

We have carefully considered each of these contentions and all of the arguments advanced by defendant in support of them and find the trial Judge erred in allowing the jury to hear that defendant had other charges against her dismissed as part of a plea agreement. We make brief comment with respect to some of defendant's contentions.

The State presented evidence to show that on June 9, 1988, Detective Mendez and Detective Riveria were working undercover in the area of 57 Pennsylvania Avenue, Newark. While sitting in their car, they were approached by defendant who asked Mendez what he was looking for. Mendez replied "a

bolt", slang for $20 worth of cocaine. Defendant turned and motioned to a friend, subsequently identified as codefendant, Luis Enchandy. Enchandy came over, spoke briefly to defendant, handed Mendez a vial and asked for $20. Mendez gave him a marked $20 bill. Defendant and Enchandy walked away ...


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