On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 02-03-0279.
The opinion of the court was delivered by: R. B. Coleman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 12, 2005
Before Judges Kestin, R. B. Coleman and Seltzer.
On August 23, 2001, defendant, Heriberto Soto, was charged in Passaic County Indictment No. 02-03-0279, with the following offenses: third degree possession of a controlled dangerous substance (CDS), cocaine, N.J.S.A. 2C:35-10a(1) (count one); second degree possession of cocaine with the intent to distribute in a quantity of one-half ounce or more but less than five ounces, N.J.S.A. 2C:35-5a(1) and (b) (count two); third degree possession of CDS with the intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7 (count three); second degree possession of CDS with the intent to distribute within 500 feet of public property, N.J.S.A. 2C:35-7.1 (count four); third degree possession of CDS, ecstasy pills, N.J.S.A. 2C:35-10a(1) (count five); third degree possession of a firearm, N.J.S.A. 2C:35-5f (count six); and second degree possession of a firearm while in the course of committing a narcotics offense, N.J.S.A. 2C:39-4.1 (count seven).
On July 15, 2002, defendant entered a plea of guilty to counts three and seven. Defendant failed to appear on the first date fixed for sentencing. Nevertheless, on January 10, 2003, the trial judge sentenced defendant, in accordance with the plea agreement, to a prison term of three years with an eighteen-month period of parole ineligibility on count three and to a five-year term, to be served consecutively, on count seven. The remaining five counts of the indictment were dismissed on the motion of the State.
Although counsel acknowledged an understanding at the sentencing hearing that there "must be a consecutive sentence, pursuant to law," on this appeal defendant argues:
POINT I: BECAUSE THE MERGER PROVISION OF N.J.S.A. 2C:39-4.1 VIOLATED THE DUE PROCESS AND DOUBLE JEOPARDY PROVISIONS OF THE STATE CONSTITUTION, THE SENTENCE IMPOSED ON THAT COUNT MUST BE VACATED.
Defendant contends the two convictions, for possession of CDS with the intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7, and for possession of a firearm while in the course of committing a violation of N.J.S.A. 2C:35-7, N.J.S.A. 2C:39-4.1, must merge. That contention is a direct challenge to the validity of N.J.S.A. 2C:39-4.1d, which provides in pertinent part:
Notwithstanding the provisions of N.J.S.A. 2C:1-8 or any other provision of law, a conviction arising under this section shall not merge with a conviction for a violation of [N.J.S.A. 2C:35 et seq.] or [N.J.S.A. 2C:16-1 et seq.] nor shall any conviction under those sections merge with a conviction under this section. Notwithstanding the provisions of N.J.S.A. 2C:44-5 or any other provision of law, the sentence imposed upon a violation of this section shall be ordered to be served consecutively to that imposed for any conviction for a violation of any of the sections of [N.J.S.A. 2C:35 et seq.] or [N.J.S.A. 2C:16-1 et seq.] or a conviction for conspiracy or attempt to violate any of those sections.
Defendant argues that the provisions requiring non-merger and the imposition of consecutive sentences violate our State Constitution's double jeopardy clause, or in the alternative, the due process clause. We disagree and affirm defendant's convictions and sentence.
The United States Supreme Court in Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed. 2d 535, 542 (1983), explained that in cases involving multiple punishment, "the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Therefore, "[w]here . . . a legislature specifically authorizes cumulative punishment under two statutes, . . . a court's task of statutory construction is at an end . . . and the trial court or jury may impose cumulative punishment[.]" Id. at 368-69, 103 S.Ct. at 679, 74 L.Ed. 2d at 544.
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