On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-10-2366.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Chambers.
Defendant Javoun Williams appeals from a final judgment of conviction and sentence. The grand jurors for Essex County charged defendant with the following crimes involving possession of a controlled dangerous substance on March 10, 2005: second-degree conspiracy to possess heroin with intent to distribute, N.J.S.A. 2C:5-2 (count one); third-degree possession of heroin, N.J.S.A. 2C:35-10a(1) (count two); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1), b(3) (count three); third-degree possession of heroin with intent to distribute in a school zone, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7 (count four); and second-degree possession of heroin with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7.1 (count five). The jury found defendant guilty of all charges. The judgment of conviction reflects that the court merged defendant's conviction on counts one through four into his conviction for the second-degree crime charged in count five of the indictment and sentenced defendant to a seven-year term of incarceration, three and one-half years to be served without possibility of parole.*fn1
The judge also suspended defendant's driver's license for six months and imposed a $50 VCCB assessment, a $75 SNSF assessment, a $30 LEOTEF penalty, a $50 lab fee, and a $2000 DEDR penalty.
Defendant presents the following issues on appeal:
I. THE COURT ERRONEOUSLY ADMITTED AN EXTRA-JUDICIAL STATEMENT FROM A NON-TESTIFYING ACCOMPLICE WHICH INCULPATED DEFENDANT, CONTRARY TO DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONTATION. (Not Raised Below).
II. TESTIMONY CONCERNING THE CONTENTS OF [THE] CITIZENS' COMPLAINTS TO THE POLICE WERE PRECLUDED BY THE HEARSAY RULE AND THUS WERE ERRONEOUSLY ADMITTED. (Not Raised Below).
III. THE JURY INSTRUCTIONS ON POSSESSION WITH INTENT TO DISTRIBUTE DRUGS WITHIN 500 FEET OF A PUBLIC HOUSING COMPLEX WERE CLEARLY DEFICIENT. (Not Raised Below).
IV. IF THIS COURT DOES NOT REVERSE DEFENDANT'S CONVICTIONS IN THEIR ENTIRETY, THE COURT MUST REQUIRE THAT THE JUDGMENT OF CONVICTION BE AMENDED TO ENTER A CONVICTION FOR THIRD DEGREE CONSPIRACY. (Not Raised Below).
V. DEFENDANT WAS DEPRIVED OF HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
VI. DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
For the reasons stated below, we conclude that the judgment of conviction should be amended to reflect a conviction for conspiracy in the third degree but otherwise affirm ...