On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 94-01-0223.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing and R. B. Coleman.
Defendant Gerard Jones was tried before a jury in 1995 and found guilty of forty-seven counts of a ninety-one count indictment relating to the operation of a drug distribution ring between July and September 1993. On defendant's direct appeal from his original judgment of conviction (JOC), we issued an unpublished opinion dated May 26, 1998. State v. Jones, Docket No. A-041-95T4 (App. Div. 1998).*fn1 In that decision, we affirmed defendant's convictions and sentence, except in two respects:
(1) we reversed the conviction on count seventy-nine, third degree unlawful possession of a weapon, and remanded for entry of a judgment of acquittal on that count because the trial court had failed to charge on that offense; and (2) we remanded for merger of count eighty-eight, an omnibus or cumulative offense of possession of controlled dangerous substance (CDS), into the other counts charging substantive drug offenses. On October 7, 1998, the Supreme Court denied defendant's petition for certification. State v. Jones, 156 N.J. 424 (1998).
In October 2003, defendant filed a pro se motion and appeal because an amended judgment had been entered and he had never been notified of a re-sentencing hearing. He also filed a pro se petition for post-conviction relief (PCR) at about the same time. While those challenges to his revised judgment of conviction were pending, we entered an omnibus order requiring that appeals of defendants then challenging their sentences be remanded to the Law Division for re-sentencing in accordance with State v. Natale, 184 N.J. 458 (2005) and State v. Abdullah, 184 N.J. 497 (2005). Pursuant to our order dated October 27, 2005, the remand court was to determine whether the absence of a presumptive term in the weighing process required the imposition of a different sentence.
The hearing on remand was conducted on March 31, 2006. After considering the issues, the remand judge, who was not the judge who had imposed the original sentence on June 16, 1995 or the amended judgment of conviction dated June 11, 1998, determined that the absence of the presumptive term would not result in a different sentence. Therefore, he imposed the same aggregate sentence of twenty-five years in prison with a fifteen-year period of parole ineligibility. This is reflected in the April 6, 2006 judgment of conviction from which defendant now appeals.
The aggravating factors found by the remand court and listed in the judgment of conviction were (a) the risk that the defendant may commit another offense, N.J.S.A. 2C:44-1a(3); (b) the substantial likelihood that the defendant was involved in organized criminal activity, N.J.S.A. 2C:44-1a(5); (c) the prior criminal record of the defendant, N.J.S.A. 2C:44-1a(6); (d) the defendant was involved in this criminal activity pursuant to an agreement with others to be paid and the pecuniary incentive was beyond that inherent in the offense itself, N.J.S.A. 2C:44-1a(7); and (e) the need for deterring this defendant and others from committing these type of offenses, N.J.S.A. 2C:44-1a(9). The court considered each of the statutory mitigating factors enumerated in N.J.S.A. 2C:44-1b but found, as the original sentencing court had, that no mitigating factors applied.
Defendant filed a timely notice of appeal challenging the remand court's determination and an amended notice of appeal challenging the action on remand for re-sentencing and the denial of defendant's motion for reconsideration of his sentence. In his appellant's brief, defendant sets forth the following points of asserted error:
POINT I: WHETHER OR NOT MR. JONES'S SENTENCE WAS PREMISED ON A CONSIDERATION OF ANY APPLICABLE PRESUMPTIVE TERMS, THAT SENTENCE, BASED AS IT WAS ON JUDICIALLY CREATED FACTS THAT WERE NEITHER CHARGED IN THE INDICTMENT NOR FOUND UNANIMOUSLY AND BEYOND A REASONABLE DOUBT BY THE JURY, IS ILLEGAL AND UNCONSTITUTIONAL.
POINT II: MR. JONES'S SENTENCE AND RESENTENCE WERE ALSO ILLEGAL PURSUANT TO YARBOUGH.
POINT III: BOTH JUDGE BROWN DURING THE ORIGINAL SENTENCING AND JUDGE KENNEDY DURING MR. JONES'S RE-SENTENCING ERRED IN NOT MERGING FOR SENTENCING PURPOSES ALL OF THE THIRD DEGREE CONVICTIONS (THE CONVICTIONS ON SECTIONS 5, 7, AND 10 OF THE CONTROLLED DANGEROUS SUBSTANCES ACT) INTO EITHER THE SECOND DEGREE AGGREGATE WEIGHT CONVICTION (COUNT EIGHTY-EIGHT) OR INTO THE CONSPIRACY CONVICTION (COUNT ONE).
After a careful review of the applicable law and facts on the record, we affirm substantially for the reasons articulated by the remand judge, Judge John C. Kennedy, in his oral opinion from the bench on March 31, ...