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State v. Francis

May 22, 2001

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GLENFORD FRANCIS, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 98-3-521-I.

Before Judges Stern, Collester and Fall.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 20, 2001

Tried to a jury, defendant was convicted of possession of one-half ounce or more of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(2) (count one); possession of cocaine, N.J.S.A. 2C:35-10a(1) (count two); hindering prosecution, N.J.S.A. 2C:29-3 (count three); and resisting arrest, N.J.S.A. 2C:29-2 (count four). At sentencing, the trial judge merged count two into count one and sentenced defendant on the second degree possession with intent conviction to an extended term of fifteen years with a mandatory minimum period of five years before parole eligibility. However, the judgment contains no reference to any period of parole ineligibility. Nor does it impose the sentence on a count by count basis or merge count two into count one. It merely states "defendant found guilty on [counts] 1-4 jury trial. 15 years N.J.S.P. (all counts concurrent)." Further, as the State candidly points out, penalties and assessments should not have been imposed on the merged count. It requests a remand "to the trial court for entry of an amended judgment of conviction."

In imposing sentence, the trial judge indicated that he was imposing the presumptive extended term and a mandatory minimum term in connection therewith. See N.J.S.A. 2C:43-6f. The mandatory minimum, as the judge noted, had to be between one- third and one-half of the specific term sentence. Defendant does not contest that his appeal may provide the basis for correction of the judgment and inclusion of a mandatory minimum parole ineligibility term on a judgment that otherwise did not provide it. In any event, the oral decision controls, see State v. Womack, 206 N.J. Super. 564 (App. Div. 1985), certif. denied, 103 N.J. 482 (1986), and in this case, a mandatory minimum was imposed on the record. In these circumstances, we remand for entry of a corrected judgment of conviction.

Before us defendant argues:

POINT I VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND DEFENDANT'S CONVICTION SHOULD BE REVERSED AND THE MATTER REMANDED FOR A NEW TRIAL.

POINT II FIFTEEN YEAR SENTENCE IMPOSED ON THE DEFENDANT IS MANIFESTLY AND UNDULY PUNITIVE.

POINT III PROSECUTOR'S SUMMATION IMPROPERLY CREATED INFERENCE FOR THE JURY AS TO THE DEFENDANT'S FAILURE TO TESTIFY AND THEREBY WARRANTS REVERSAL OF THE CONVICTION AND A NEW TRIAL.

POINT IV DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE [OF] COUNSEL DUE TO COUNSEL'S FAILURE TO RAISE THE ISSUE OF SELECTIVE ENFORCEMENT -RACIAL PROFILING.

In his supplementary pro se brief, defendant further contends:

POINT I THE INDICTMENT IN THIS CASE WAS BASED IN PART, ON PERJURED TESTIMONY AND AS SUCH, DEFENDANT WAS DENIED DUE PROCESS OF LAW IN VIOLATION OF HIS FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES AND THE CONSTITUTION OF NEW JERSEY

POINT II TRIAL COUNSEL WAS IN[]EFFECTIVE THROUGHOUT THE PROCEEDINGS, VIOLATING DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL PURSUANT TO THE FIFTH, SIXTH, AND ...


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