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State v. Parker

December 06, 2000

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DARYL C. PARKER, DEFENDANT-APPELLANT.



Before Judges D'Annunzio, Keefe and Eichen.

The opinion of the court was delivered by: Eichen, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 9, 2000

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

Defendant Darryl C. Parker was arrested in the vicinity of Bellevue Avenue and Atlantic Avenue in Atlantic City in possession of eight ziploc bags containing suspected cocaine which he intended to "share" with or "sell" to others. The location of his arrest was within 1,000 feet of a school, contrary to N.J.S.A. 2C:35-7, and within 500 feet of a public park, contrary to N.J.S.A. 2C:35-7.1. He was charged and convicted of both offenses and sentenced to concurrent sentences. This appeal requires us to decide whether he was subjected to multiple punishments for the same offense and, therefore, whether the two convictions should have been merged. We hold that merger was required and we remand for entry of an amended judgment of conviction.

Defendant was charged in Atlantic County Indictment No. 98-05-1137 with third degree possession of a controlled dangerous substance, cocaine, contrary to N.J.S.A. 2C:35-10a(1) (count one); third degree possession of a controlled dangerous substance, cocaine, with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3) (count two); third degree conspiracy to possess a controlled dangerous substance, cocaine, with intent to distribute, contrary to N.J.S.A. 2C:5-2 and 2C:35-5b(3) (count three); third degree possession of a controlled dangerous substance, cocaine, with intent to distribute within 1,000 feet of school property, contrary to N.J.S.A. 2C:35-7 (count four); second degree possession of a controlled dangerous substance, cocaine, with intent to distribute within 500 feet of a public housing facility, public park, or public building, contrary to N.J.S.A. 2C:35-7.1 (count five); and fourth degree use of a paging device while engaged in the commission of a drug-related crime, contrary to N.J.S.A. 2C:33-20 (count six).

Defendant pleaded guilty to third degree possession of a controlled dangerous substance, cocaine, with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count four) (the school zone offense), and second degree possession of a controlled dangerous substance, cocaine, within 500 feet of a public housing facility, a public park, or a public building, N.J.S.A. 2C:35-7.1 (count five) (the public park offense).

Consistent with a plea agreement entered into between the State and defendant, the trial court imposed two concurrent five-year custodial terms, with a minimum of thirty months to be served before parole eligibility. The court also assessed the required Victims of Crime Compensation Board, Drug Enforcement and Demand Reduction, Safe Neighborhood Services Fund and Law Enforcement Officers Training and Equipment Fund penalties, as well as lab fees, on counts four and five, and suspended defendant's driving privileges for two years.

Defendant appeals and makes the following arguments:

POINT I

DEFENDANT'S THIRD DEGREE CONVICTION OF POSSESSION OF CDS WITH INTENT TO DISTRIBUTE WITHIN 1000 FEET OF A SCHOOL MUST BE MERGED INTO HIS SECOND DEGREE CONVICTION OF POSSESSION OF THE SAME CDS WITH INTENT TO DISTRIBUTE WITHIN 500 FEET OF A PUBLIC PARK. (Not raised below)

POINT II

DEFENDANT SHOULD BE AWARDED CREDIT FROM THE DATE OF HIS GUILTY PLEA TO THE DATE OF SENTENCE.

We have carefully reviewed the claim advanced in Point II and we conclude that it is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2); ...


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