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State v. Lowery

November 23, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LEON LOWERY, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Union County, 01-02-0218.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 13, 2007

Before Judges Lintner and Sabatino.

Defendant, Leon Lowery, appeals from a July 28, 2006, order entered by Judge Barisonek, denying his petition for post conviction relief (PCR) following the conclusion of a hearing on the same date. We affirm. On February 16, 2001, a Union County Grand Jury issued Indictment No. 01-02-0218 (218) charging defendant with third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (Count One); 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(3) (Count Two); third-degree possession of CDS with intent to distribute on or within 1000 feet of school property, N.J.S.A. 2C:35-7 (Count Three); and second-degree possession of CDS with intent to distribute in or within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (Count Four).

Two subsequent Union County Indictments, 01-04-0525 (525) and 01-05-0564 (564) were returned against defendant, the former charging defendant with criminal contempt, and the latter charging defendant with drug offenses, including possession with intent to distribute within 1000 feet of school property. Thomas Butler represented defendant on the charges stemming from the 218 indictment while Peter Adolf represented defendant on indictments 525 and 564.

On August 6, 2001, defendant rejected an offer to plea to all three indictments in return for a recommended sentence of seven years with three and one-half years of parole ineligibility. On December 19, 2001, following a two-day trial, defendant was found guilty on all four counts of the 218 indictment. On March 4, 2002, defendant pled guilty to the 525 fourth-degree of criminal contempt charge and the 564 third-degree charge of possession of CDS with intent to distribute within 1000 feet of school property.

On May 24, 2002, defendant appeared for sentencing before Judge Barisonek on all three indictments.*fn1 At the sentencing hearing, Judge Barisonek found that there was confusion as to whether the sentence on the pleas to 525 and 564 were to run concurrent or consecutive with the sentence received on the 218. Defendant believed that his plea to 525 and 564 was conditioned on a concurrent sentence being imposed on the 218 jury conviction. Judge Barisonek, accordingly, permitted defendant to withdraw his pleas to the 525 and 564 indictments.*fn2

On the 218 conviction, Judge Barisonek merged the three third-degree convictions with the second-degree conviction. Because defendant's criminal history made him eligible for an extended term as a persistent offender, N.J.S.A. 2C:44-3a, the judge granted the State's motion for a discretionary enhanced sentence and imposed a term of fifteen years with six years of parole ineligibility, N.J.S.A. 2C:43-7a(3). Defendant appealed and, in an unreported decision, we affirmed defendant's conviction. Defendant's petition for certification was denied on June 4, 2004. State v. Lowery, 180 N.J. 453 (2004).

On August 24, 2004, defendant moved to correct his sentence, contending that it was illegal. Judge Barisonek denied defendant's motion and we affirmed that denial on April 19, 2006. On May 3, 2005, defendant filed his petition for PCR, the subject of this appeal.

We recite the facts pertinent to this appeal. On November 4, 2000, while supervising and conducting a narcotics investigation, Detective John Wyso of the Roselle Police Department's Narcotics Unit observed defendant engage in "a quick hand exchange" with another individual, and believed it to be a drug transaction. As a result of his observation, Wyso approached defendant, who then ran. Wyso pursued defendant into an alley. When Wyso was approximately five feet behind defendant, he saw defendant reach into the right side of his coat and retrieve a black hat, which he discarded by throwing it onto a nearby roof. Defendant was arrested. $109 was found in his pants pocket and the hat was retrieved from the roof.

Inside the hat, Wyso found a plastic bag and twenty-eight brown glass bottles with white caps, which were taken to headquarters, logged as evidence, and placed in the vault. Tests performed at the Union County Prosecutor's Office Laboratory determined that the contents were cocaine. Detective Martin Lynch of the Union County Prosecutor's office, testifying as an expert, opined that an individual engaged in a hand-to-hand transaction in a high drug area and possessing twenty-eight bottles of cocaine and $109 in low denomination bills possessed the drugs with the intent to distribute.

On appeal, defendant raises the following points:

POINT I

THE DEFENDANT WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ...


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