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State v. Foat

May 23, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DALE FOAT, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 05-05-622; 05-01-47; 05-08-1075.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 7, 2008

Before Judges Sapp-Peterson and Newman.

The Middlesex County Grand Jury returned Indictment Number 05-05-00622 on May 4, 2005, charging defendant Dale Foat with third degree possession of heroin, N.J.S.A. 2C:35-10(a)(1) (count one), third degree possession with intent to distribute heroin, N.J.S.A. 2C:35-5(b)(3) (count two), third degree possession with intent to distribute heroin on or near school property, N.J.S.A. 2C:35-7 (count three), third degree distribution of heroin, N.J.S.A. 2C:35-5(a)(1) (count four), and third degree distribution of heroin on or near school property, N.J.S.A. 2C:35-7 (count five). Co-defendant Lorenzo Taylor was charged in count one. Following a trial, the jury convicted defendant on all counts as charged.

On December 22, 2005, defendant entered into a plea agreement with the State and pleaded guilty to Indictment Number 05-01-00047, charging him with eight counts of CDS violations, including school zone and public place charges. The State recommended a seven-year term of imprisonment, three and one-half years without parole, to be served concurrently with the sentence imposed under Indictment Number 05-05-00622.

On March 24, 2006, defendant appeared for sentencing, however, he also pleaded guilty on this date to count three of Indictment Number 05-08-01075, charging him with third degree possession with intent to distribute CDS on or near school property. The State agreed to recommend a sentence of five years in prison, two and one-half years without parole, which was to run consecutively to the sentence to be imposed under Indictment Number 05-05-00622.

The trial judge granted the State's motion to sentence defendant to an extended term under N.J.S.A. 2C:43-6(f) on the indictment from which the jury found defendant guilty on all charges. The judge merged count one into count two, merged count two into count three, and merged count four into count five. On counts three and five, the judge imposed concurrent sentences of ten years in prison, five years without parole. A total VCCB penalty of $100, a $2,000 DEDR penalty, a $50 lab fee, a $150 SNSF assessment and a $30 LEOTEF penalty were also imposed.

After merging all counts on Indictment Number 05-01-00047, except counts four (third degree distribution of CDS, N.J.S.A. 2C;35-5(a)(1), 5(b)(3) and seven (second degree distribution of CDS on or near a public building, N.J.S.A. 2C:35-5(a), 35-7.1), the judge followed the renegotiated sentence recommendation from the State and imposed two, concurrent terms of five years in prison, with two and one-half years without parole eligibility on each count. A total VCCB penalty of $100 was imposed, as well as a $2,000 DEDR penalty, a $150 SNSF assessment, a $50 lab fee and a $30 LEOTEF penalty.

On Indictment Number 05-08-01075, the trial judge imposed a five year term of imprisonment, two and one half years without parole, that was to run consecutively to the sentence imposed on Indictment Number 05-05-00622, but concurrently with the sentence imposed on counts four and seven on Indictment Number 05-01-0047. The judge also imposed a $50 VCCB penalty, a $1,000 DEDR penalty, a $75 SNSF assessment and a $30 LEOTEF penalty. The aggregate sentence for the three indictments is fifteen years in prison with a seven and one-half year period of parole ineligibility. Defendant appeals.

On appeal, the State agrees with defendant's position that he is entitled to a resentencing on counts three and five of Indictment Number 05-05-00622, relying upon State v. Thomas, 188 N.J. 137 (2006). In State v. Thomas, sentencing courts were instructed to resentence defendants within the statutory extended term range, based upon the aggravating and mitigating factors present, but without consideration of the former presumptive terms. Id. at 151-52, 154. The State also correctly points out that under N.J.S.A. 2C:44-5(a)(2), only one extended term may be imposed and that the judgment of conviction should only reflect one extended term and one sentence within the normal range.

Except to remand for resentencing on counts three and five on Indictment Number 05-05-00622, we affirm.

The relevant facts developed at trial may be summarized as follows. On March 16, 2005, right before noon, Lieutenant Paul Schuster (Schuster), head of the New Brunswick Police Department Anti-Crime Unit (ACU), was conducting a surveillance operation in an area of the city known for its drug activity when he received a tip from a confidential informant that drugs where being sold on the corner of Remsen Avenue and Hale Street. Schuster discontinued the surveillance operation he was conducting, and moved the surveillance vehicle he was driving to Hale Street. Schuster parked the surveillance vehicle approximately 150 feet from the corner of Remsen and Hale, and 60 feet from defendant's brother's house, located at 174 Hale Street. Schuster was able to observe the corner and the front of the house.

Schuster observed defendant, dressed in the clothing described by the confidential informant, on the corner of Remsen and Hale talking to a man named Maurice Hawkins (Hawkins). After watching defendant and Hawkins converse briefly, Schuster watched defendant walk to 174 Hale Street. When defendant reached the residence, he nervously looked up and down the street. He then bent down and took a white paper packet from under a bush. Defendant unwrapped the white paper packet and removed a light colored item. Defendant then replaced the white paper packet under the bush. Defendant walked back to the corner of Remsen and Hale and gave the light colored item to ...


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