July 3, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
NEVILLE A. LAFOND, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Ind. No. 02-09-1111.
The opinion of the court was delivered by: Per Curium
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 27, 2007
Before Judges Kestin and Lihotz.
Defendant Neville Lafond and co-defendant Ronald O'Reilly, were charged with third-degree conspiracy to possess a controlled dangerous substance (CDS) with intent to distribute N.J.S.A. 2C:35-5b(11) and N.J.S.A. 2C:5-2 (count one); fourth- degree possession of CDS (marijuana) over 50 grams N.J.S.A. 2C:35-10a(3) (count two); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35- 5b(11) (count three); second-degree possession of a firearm (9mm Sig Sauer Pistol) while engaged in CDS distribution related activity, N.J.S.A. 2C:39-4.1c (count four); and third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count five). Count one was dismissed prior to trial. On February 16, 2005, after a three-day jury trial, defendant was convicted of the charges initially designated as counts two and three; and acquitted of those initially designated counts four and five.
The State's motion for an extended term sentence, pursuant to N.J.S.A. 2C:43-6f, was granted. Defendant was sentenced on April 15, 2005, to two concurrent five-year terms, each with a three-year period of parole ineligibility. Applicable fines and assessments were ordered.
On appeal, defendant raises the following issues:
THE TRIAL COURT'S INSTRUCTIONS TO THE JURY ON STIPULATED FACTS DIRECTED THE JURY'S VERDICT AND THUS DENIED DEFENDANT THE RIGHT TO TRIAL BY JURY AND DUE PROCESS OF LAW.
U.S. Const., Amend. V, VI and XIV, N.J. Const. (1947), Art 1, Par. 1. (Not Raised Below).
THE SENTENCING COURT ERRED IN GRANTING THE STATE'S MOTION FOR AN EXTENDED TERM IN THE ABSENCE OF ANY ADEQUATE EXPLANATION BY THE STATE FOR WHY IT INSISTED THAT AN EXTENDED TERM BE IMPOSED. IN ADDITION, DEFENDANT'S EXTENDED TERM SENTENCE ON COUNT TWO IS ILLEGAL (Not Raised Below).
A. The Extended Term On Count Three Must Be Vacated.
B. The Extended Term On Count Two Is Illegal and Must Be Vacated.
During trial, the State and defense counsel stipulated "[t]hat State Exhibit S-1 is a quantity of marijuana, with a total net weight of 86.4 grams, 3.04 ounces, as tested by the New Jersey State Police Laboratory, on August 12, 2002." The trial judge instructed the jury during theState's vcase -in- chief as follows:
This is not a fact testified to by a witness, but rather it is agreed upon by the two parties, the State and the defense. You will be able to use this agreed-upon fact, this stipulation, during your deliberations, in any way that you see fit. But you are the ultimate triers of fact. And you are not bound, of course, by anything that anyone stipulates to. On anything else, you are the independent factfinders.
In the general charge to the jury, after reviewing the elements of each crime charged, the trial judge initially omitted to tell the jury it must find the weight of the marijuana as an element of each offense. Following a side-bar, the trial court provided the jury with the following additional instructions:
As to the verdict sheet, it indicates on the possession of marijuana, and the possession with the intent to distribute, [counts two and three of the original indictment] the verdict sheet has the quantity, in terms of the possession of marijuana. If the person possesses marijuana, mere possession, in the first count, I gave you, it has to be more than 50 grams.
For possession with intent to distribute, it must be more than one ounce. . . . So, when I gave you the elements of the offense, as to S-1, I said that they must find that S-1 is marijuana. And that the defendant possessed S-1. When I'm referring to S-1, with possession only, that's more than 50 grams. And as to S-1, with respect to the intent to distribute, it must be more than one ounce. You'll have S-1 in the jury room with you. You have the stipulation, as to what it is, and how much it is.
So you can determine, from your own analysis of S-1, what it is. . . .
Defendant suggests that the trial court's failure to again instruct the jury that it was free to reject the stipulated facts was error amounting to a directed verdict. Defendant's failure to have interposed an objection during trial, however limits our review to a search for plain error. See Rule 2:10-2. Where plain error is alleged in a jury charge, it has been defined as "legal impropriety . . . prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed. 2d 797 (1970). In determining error, the charge must be read and reviewed in its entire context. State v. Torres, 183 N.J. 554, 564 (2005) (citations omitted); State v. Wilbely, 63 N.J. 420, 422 (1973).
We determine that the jury charge, when read as a whole, contained proper instructions on each element of each offense, and that there was no untoward interference from the trial court which would influence the "jury's impartial deliberations upon the guilt of a criminal defendant based solely upon the evidence . . . ." State v. Simon, 79 N.J. 191, 206 (1979). We presume that the jury followed the judge's instructions. See State v. Winter, 96 N.J. 640, 648-49 (1984). We further determine that the charge cannot be construed as a directed verdict against a defendant, see e.g., State v. Collier, 90 N.J. 117, 122-23 (1982), and, therefore, defendant's conviction is affirmed.
There is no dispute, and the State concedes, that this matter must be remanded for resentencing to assess the State's explanation as to why it did not waive an extended term. State v. Lagares, 127 N.J. 20, 33 (1992); see also State v. Kirk, 145 N.J. 159, 168 (1996). The State also concedes that that the second extended term must be vacated as the statute does not apply to a fourth-degree offense. See R. 3:21-10b(4). Accordingly, we affirm the convictions and remand for reconsideration of the sentence.
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