On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 03-11-4107.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 28, 2008
Before Judges Stern and Kestin.
Defendant was convicted of possession of heroin, possession with intent to distribute, and possession with intent to distribute it in a school zone. He was sentenced, after merger, to an extended term of eight years in the custody of the Commissioner of Corrections with three years to be served before parole eligibility. See State v. Gonzalez, 123 N.J. 462 (1991).
On this appeal, defendant argues:
POINT ONE THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL. POINT TWO THE EVIDENCE IS INSUFFICIENT TO SUSTAIN THE VERDICT. (NOT RAISED BELOW) POINT THREE THE SENTENCE WAS MANIFESTLY EXCESSIVE. POINT FOUR STATE V. NATALE CRITERIA.*fn1
Defendant did not move for a new trial, and the second point is not cognizable on the appeal. R. 2:10-1. In any event, both contentions are without merit. See State v. Reyes, 50 N.J. 454, 458-59 (1967); R. 2:11-3(e)(2).
The defendant claims that there was insufficient evidence on which to convict and that his motion for judgment of acquittal should have been granted in this surveillance case. He says "there is not a scintilla of evidence connecting defendant to the heroin" and only the "completely uncorroborated testimony of Officer Vautier to connect this defendant to any drug sale." Vautier had observed defendant take money from approximately five people who approached him, whereupon co- defendant Steven Odoms would go to the back of the house, return, and hand an item to the persons who made the payments.*fn2
Odoms' footprints in the mud led to the stash in a garbage bag in the back of the house.
Defendant's mandatory extended term sentence, under N.J.S.A. 2C:43-6(f), was imposed shortly before the Supreme Court's decisions in State v. Thomas, 188 N.J. 137 (2006), and State v. Pierce, 188 N.J. 155 (2006). Accordingly, we remand for resentencing under Thomas, supra, which applies to cases in "the pipeline" when it was decided. See 188 N.J. at 152 (citing to State v. Natale, 184 N.J. 458, 494 (2005)).*fn3 In balancing the aggravating and mitigating factors, "the court shall not be required to start from the fixed point of the previously applicable presumptive sentence for the extended term range."
The conviction is affirmed. The matter is remanded ...