Before Judges Petrella, Braithwaite and Coburn.
The opinion of the court was delivered by: Braithwaite, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 24, 2000
On appeal from Superior Court of New Jersey, Law Division, Bergen County.
On January 10, 1997, defendant sold two ounces of cocaine to an undercover sheriff's officer in the parking lot of the A&P Supermarket in Garfield. Defendant was arrested and indicted for second-degree distribution of cocaine, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2); and two counts of possession of cocaine, N.J.S.A. 2C:35-10(a)(1).
Thereafter, defendant was advised of his trial date and the consequences should he fail to appear for trial. Specifically, defendant was advised that if he failed to appear, he would be tried in absentia. See R. 3:16(b); State v. Finklea, 147 N.J. 211 (1996), cert. denied, 522 U.S. 837, 118 S. Ct. 110, 139 L. Ed. 2d 63 (1997); State v. Hudson, 119 N.J. 165 (1990). Defendant failed to appear and was tried in absentia and convicted of all counts.
Defendant subsequently moved for a new trial, asserting that he was not notified of his trial date. Defendant's application was denied. At sentencing, the State moved for the imposition of an extended term pursuant to N.J.S.A. 2C:43-6(f) because defendant had a prior conviction for possession with intent to distribute a controlled dangerous substance in 1985. The judge denied the State's motion, saying:
I'm not satisfied the State has met its burden to prove to this Court that he is eligible for the extended term as a persistent drug offender under the Comprehensive Drug Enforcement Act so I'm going to deny the State's request for an extended term.
The judge then sentenced defendant to an eight-year custodial term with a three-year period of parole ineligibility on the possession with intent conviction and two concurrent five-year terms on the two possession convictions.
The State now appeals and contends:
THE TRIAL COURT ERRED IN FINDING THAT THE STATE FAILED TO PROVE THAT DEFENDANT WAS ELIGIBLE FOR SENTENCING AS A REPEAT DRUG OFFENDER UNDER N.J.S.A. 2C:43-6f; ACCORDINGLY, DEFENDANT'S SENTENCE IS ILLEGAL.
A. The Law Regarding Extended Terms for Repeat ...