On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-06-0775.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Gilroy.
Tried to a jury, defendant Lamont Ford was found guilty of third-degree possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10a(1) (Count One); third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(3) (Count Two); third-degree possession of a CDS with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5a (Count Three); third-degree distribution of a CDS, N.J.S.A. 2C:35-5a(1) and b(3) (Count Four); and third-degree distribution of a CDS within 1,000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5a (Count Five). Tried at the same time as the indictable offenses, defendant was also found guilty of two ancillary disorderly persons offenses charged under a complaint summons: possession of under fifty grams of marijuana, N.J.S.A. 2C:35-10a(4); and possession of drug paraphernalia, N.J.S.A. 2C:36-2.*fn1
On October 6, 2006, defendant was sentenced on Counts Three and Five to two five-year terms of imprisonment with a three-year period of parole ineligibility, the sentences to run concurrently. Counts One and Two were merged with Count Three, and Count Four was merged with Count Five. On each of the disorderly person offenses, defendant was sentenced to six-month terms of imprisonment, concurrent with the sentence imposed on Count Three of the indictment.
Defendant does not contend that the verdicts were against the weight of the evidence. Consequently, we will describe and discuss the relevant facts, as necessary, during our disposition of each of the issues raised on appeal. On appeal, defendant argues:
THE TRIAL JUDGE ERRONEOUSLY RULED THAT MR. FORD'S 1990 CONVICTION OF ROBBERY COULD BE INTRODUCED BY THE STATE TO IMPEACH MR. FORD'S CREDIBILITY IF FORD TESTIFIED IN HIS OWN DEFENSE. HE ALSO FAILED TO DECIDE WHETHER THE PRIOR CONVICTION NEEDED TO BE SANITIZED. (PARTIALLY RAISED BELOW).
A. AT THE 2006 TRIAL, THE TRIAL JUDGE ERRONEOUSLY CONCLUDED THAT MR. FORD'S 1990 CONVICTION FOR ROBBERY WAS NOT SO REMOTE AS TO PRECLUDE THE STATE FROM USING IT TO IMPEACH FORD IF HE TESTIFIED, OR IN QUESTIONING FORD'S CHARACTER WITNESS.
B. THE TRIAL JUDGE FAILED TO CONDUCT THE SECOND TIER OF ANALYSIS
REQUIRED BY BRUNSON:*fn2 WHETHER FORD'S 1990 PRIOR CONVICTION SHOULD HAVE BEEN SANITIZED IF THE STATE WANTED TO USE IT FOR IMPEACHMENT PURPOSES. (NOT RAISED BELOW).
1. SANITIZING PRIOR CONVICTIONS "SIMILAR" TO CURRENT OFFENSE.
2. SANITIZING PRIOR CONVICTIONS DISSIMILAR TO CURRENT OFFENSE.
3. THE SINGLETON*fn3 HOLDING APPLIED IN THIS CASE.
4. THE HAMILTON*fn4 HOLDING APPLIED IN ...