On appeal from Superior Court of New Jersey, Law Division, Atlantic County, 98-06-01476.
Before Judges Baime, Carchman and Lintner.
The opinion of the court was delivered by: Per Curiam
Submitted November 15, 2000
This appeal requires us to determine whether a conviction for third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(3) (Section 5), merges for the purposes of sentencing with a conviction for second-degree possession of cocaine with intent to distribute within 500 feet of public property, N.J.S.A. 2C:35-7.1 (Section 7.1). We answer that question in the affirmative and remand this matter for resentencing.
Pursuant to a "no show/no recommendation" plea agreement, defendant Tahir S. Gregory entered a guilty plea to the above offenses. Under the terms of the plea agreement, the State agreed that if defendant appeared for his presentence and sentence obligations, it would recommend a four-year term of imprisonment, the presumptive term for a third-degree offense, even though defendant entered a plea to a second-degree offense; if defendant failed to appear, the State was permitted to seek a greater sentence "in the second-degree range."
Defendant failed to appear for his presentence interview. On March 19, 1999, defendant was sentenced to a term of eight years in prison for the Section 7.1 conviction and to a concurrent four-year term for the Section 5 offense. Mandated penalties and assessments were also imposed.
At the plea hearing, defendant admitted that he possessed cocaine in his motel room residence with the intent to share it with his friends. The motel was within 500 feet of the beach, a park or public place within the scope of Section 7.1.
Defendant appeals, raising the following issues:
THE COURT ERRED IN FAILING TO MERGE THE OFFENSE OF POSSESSION WITH INTENT TO DISTRIBUTE INTO THE GREATER OFFENSE OF POSSESSION WITH INTENT TO DISTRIBUTE WITHIN 500 FEET OF A PUBLIC PARK OR PLACE. (Not Raised Below)
THE SENTENCE IMPOSED BY THE COURT WAS AN ABUSE OF DISCRETION IN THAT IT VIOLATED THE REASONABLE UNDERSTANDING OF THE DEFENDANT AND WAS MANIFESTLY EXCESSIVE AND THEREFORE MUST BE REDUCED.
A. The Court's Statement To Defendant That If He Failed To Appear He Would Receive A Seven-Year Term ...