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State v. Jones

May 19, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KENDALL L. JONES, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 05-07-0963.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: May 6, 2009

Before Judges Axelrad and Lihotz.

Defendant, Kendall Jones, appeals from the court's denial of his application for entry to the Drug Court Program, finding no patent and gross abuse of prosecutorial discretion. He also challenges the imposition of consecutive sentences on his plea to the new offenses and the violation of probation. We affirm.

On April 21, 2004, defendant was indicted under Ocean County Indictment No. 04-04-778, charging him with third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count three), and fourth-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3b (count four).

On May 14, 2004, defendant was indicted under Ocean County Indictment No. 04-05-964, charging him with third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count fifteen).*fn1

On June 7, 2004, pursuant to a plea agreement, defendant pled guilty to counts three and four of Indictment No. 04-04-778, and to count fifteen of Indictment No. 04-05-964. On July 23, 2004, he was sentenced to three years' probation on all counts concurrent to each other with applicable fines and penalties.

On June 28, 2005, defendant was indicted under Ocean County Indictment No. 05-06-890, charging him with third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count one) and second-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2) (count two).

On July 20, 2005, defendant was indicted under Ocean County Indictment No. 05-07-963, charging him with third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count two); fourth-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(12) (count three); and fourth-degree possession of a prohibited weapon, brass knuckles, N.J.S.A. 2C:39-3e (count four).

On April 5, 2006, defendant was indicted under Ocean County Indictment No. 06-04-550. The single count of the indictment charged defendant with third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1).

Defendant timely filed an application to the Ocean Vicinage Drug Court Program, but on August 11, 2006, the Prosecutor's Office submitted a legal rejection, as a result of which defendant was informed by the Drug Court Team Leader he was denied entry. Defendant appealed to the Superior Court, Law Division and on October 17, 2006, a hearing was held before Judge Villano. The court denied admission into Drug Court, finding no patent and gross abuse of prosecutorial discretion.

On November 3, 2006, defendant pled guilty to count two of Indictment No. 05-06-890 (second-degree possession of cocaine with intent to distribute) and count two of Indictment No. 05-07-963 (third-degree possession of cocaine with intent to distribute). This was a negotiated plea as per the Brimage*fn2 guidelines, which sought a ten-year custodial term with a forty-eight-month period of parole ineligibility on the second-degree count with a concurrent five-year custodial term on the third-degree count. All other charges were to be dismissed. Defendant reserved the right to appeal his rejection from the Drug Court Program and to argue at sentencing that the pending Violations of Probation (VOP) should run concurrent to the sentence on his plea.

On January 5, 2007, defendant pled guilty to the VOP on Indictment Nos. 04-05-964 and 04-04-778. Judge Citta granted the State's motion for a mandatory extended term. N.J.S.A. 2C:43-6f. The court sentenced defendant to concurrent custodial terms on the VOP of four years on Indictment No. 04-05-963, and on Indictment No. 04-04-778 to four years on count three and twelve months on count four. In accordance with the plea agreement, the court then sentenced defendant to ten years in custody with a forty-eight-month period of parole ineligibility on count two of Indictment No. 05-06-890, and a concurrent five years in custody on count two of Indictment No. 05-07-963. The court ordered the sentences on these indictments to be served consecutively to ...


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