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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...