On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 03-04-0393-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 24, 2006
Before Judges Skillman and Lisa.
Tried to a jury, defendant, Gibbon W. Farquharson, was convicted of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (count one); third-degree distribution of a CDS, N.J.S.A. 2C:35-5a(1) and b(3) (count two); and third-degree distribution of a CDS within 1,000 feet of school property being used for school purposes, N.J.S.A. 2C:35-7 (count three). The jury acquitted defendant of count four, third-degree resisting arrest, N.J.S.A. 2C:29-2a(1). Prior to sentencing, defendant entered into a plea agreement, by which he pled guilty to charges in three additional indictments, in exchange for a recommendation that he be sentenced to an overall aggregate sentence of eight years imprisonment with a four-year parole disqualifier for the convictions resulting from the jury verdict and the charges in the other three indictments. On April 1, 2005, the judge imposed sentence. With respect to the case that went to trial, Indictment No. 03-04-0393-I, the judge merged count one with count two, and count two with count three, on which he imposed a mandatory extended term sentence, see N.J.S.A. 2C:43-6f, of eight years imprisonment with a four-year parole disqualifier. In accordance with the plea agreement, the judge also sentenced defendant to concurrent terms of imprisonment on the other indictments. Defendant appealed only with respect to Indictment No. 03-04-0393-I.
On appeal, defendant argues:
THE DEFENDANT IS ENTITLED TO A NEW TRIAL BECAUSE OF THE PROSECUTOR'S IMPROPER STATEMENTS IN HIS SUMMATION.
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A MISTRIAL.
THERE WAS INSUFFICIENT EVIDENCE UPON WHICH TO CONVICT THE DEFENDANT OF DISTRIBUTION OF A CONTROLLED DANGEROUS SUBSTANCE WITHIN 1000 FEET OF SCHOOL PROPERTY (Not raised below).
THE TRIAL COURT'S FAILURE TO ADEQUATELY INSTRUCT THE JURY THAT THE STATE MUST PROVE THAT THE SCHOOL WAS OPERATIONAL ON THE DATE IN QUESTION MANDATES THE REVERSAL OF THE ...