On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-04-0438.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 11, 2008
Before Judges Lintner and Alvarez.
Defendant Franciso Mojica appeals from his conviction by a jury of third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of heroin with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count two); third-degree possession of heroin with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5(a) (count three); third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1), (count four); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count five); and third-degree possession of cocaine with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5(a) (count six).
The trial judge granted the State's motion to impose a mandatory extended term, N.J.S.A. 2C:43-6(f), on defendant as he had a prior conviction for drug distribution. He also merged counts one and two into count three, and merged counts four and five into count six. Accordingly, defendant was sentenced to a ten-year term with a five-year period of parole ineligibility on count three, and a five-year term with three years of parole ineligibility, concurrent, on count six. Appropriate fines and penalties were also imposed. Defendant appeals and we affirm the judgment of conviction, except that we remand for resentencing, as the trial judge did not explain his reasons for sentence in accordance with N.J.S.A. 2C:43-2(e) and R. 3:21-4(g).
On appeal, defendant raises the following points for our consideration:
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO CHARGE THE LESSER INCLUDED OFFENSE OF LOITERING FOR THE PURPOSE OF ILLEGALLY USING, POSSESSING OR SELLING A CONTROLLED SUBSTANCE AS REQUESTED BY DEFENSE COUNSEL.
THE TRIAL COURT'S FAILURE TO ADVISE DEFENDANT OF HIS RIGHT TO CHALLENGE THE VALIDITY OF THE ALLEGED PREDICATE FELONIES MANDATING THE EXTENDED TERM VIOLATED HIS RIGHTS UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.
THE TRIAL COURT'S BALANCING OF AGGRAVATING AND MITIGATING FACTORS CONSTITUTED [JUDICIAL] FACT FINDING BEYOND THAT CONSTITUTIONALLY PERMITTED.
Defendant was observed engaging in two hand-to-hand transfers of packages for money by Paterson Police Detective Ronald Altman and Sergeant Troy Bailey. When defendant was arrested shortly after the second transaction, the officers removed a large plastic bag, containing fifty glassine envelopes and thirteen glass vials, from the back of his waistband. The glassine envelopes were found to contain heroin and the vials contained cocaine. ...