On appeal from the Superior Court of New Jersey, Law Division, Warren County.
King and Thomas. The opinion of the court was delivered by King, P.J.A.D.
There is one significant issue raised on this appeal. The sentencing Judge downgraded or reduced defendant Linnette Barber's conviction of possession of cocaine (three kilograms), with intent to distribute, N.J.S.A. 2C:35-5(b)(1), a first-degree offense, to a second-degree offense for purposes of sentencing pursuant to N.J.S.A. 2C:44-1(f)(2). However, the sentencing Judge refused to impose a period of parole ineligibility as part of the five-year State Prison sentence for the second-degree offense. The State has cross-appealed from the downgrading and the refusal to impose a period of parole ineligibility. We conclude that the State is correct, in part, on the cross-appeal and remand for resentencing because of the failure to impose a parole disqualifier with the downgraded five-year base sentence.
Defendant Linnette E. Barber was convicted of possession of cocaine and possession of cocaine with intent to distribute. She was sentenced to five years in prison for possession with intent to distribute and to a three-year concurrent term for simple possession. On this appeal, defendant asserts: (1) that the Judge should have instructed the jurors that they had to find beyond a reasonable doubt that defendant possessed the quantity of five or more ounces of cocaine before concluding that defendant was guilty of possession of cocaine with intent to distribute; (2) that the Judge should not have continued the trial in defendant's absence due to illness; (3) that the search of defendant's vehicle violated her right to be free from unreasonable searches and seizures; (4) that the prosecutor made improper comments in summation on the jurors' duty to convict; and (5) that defendant's convictions for possession of cocaine
and possession with intent to distribute should be merged. On the cross-appeal, the State asserts that the Judge erred in sentencing defendant as a second-degree offender to a five-year prison term on her conviction for first-degree possession of cocaine with intent to distribute without any parole disqualifier.
We conclude that the appeal is clearly without merit except the merger point and we affirm the conviction. R. 2:11-3(e)(2). We modify and merge Counts I and II. As first noted, we conclude that the cross-appeal is meritorious, in part; we reverse and remand for resentencing for failure to impose a parole disqualifier.
[This section is deleted from the published opinion at the direction of the Panel because the issues did not meet the standards for publication. See R. 1:36-2.]
For a conviction of first-degree possession of cocaine with intent to distribute:
The defendant shall, except as provided by N.J.S. 2C:35-12, be sentenced to a term of imprisonment by the court. The term of imprisonment shall include the imposition of a minimum term which shall be fixed at, or between, one-third and one-half of the sentence imposed, during which the defendant shall be ineligible for parole. [ N.J.S.A. 2C:35-5(b)(1); emphasis added.]
The Judge may sentence a defendant to a term based on one degree lower than the conviction under N.J.S.A. 2C:44-1(f)(2) which provides: "In cases of convictions for crimes of the first or second degree where the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of Justice demands . . . ."
The State contends that the Judge erred in failing to impose a period of parole ineligibility. Because first-degree possession with intent to distribute requires a period of parole ineligibility, the State says that the Judge was required to impose a period of parole ineligibility despite downgrading the sentence to a second-degree offense and imposing ...