On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 03-02-0200 and 03-04-0635.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 14, 2009
Before Judges Reisner and Chambers.
Defendant Raheem Molley appeals from an October 9, 2007 order denying his petition for post-conviction relief (PCR). We affirm.
These are the most pertinent facts. At about 9 a.m. on November 15, 2002, defendant sold drugs to an undercover police officer outside a public housing complex located near a public park in Atlantic City. The officer paid for the drugs with a $20 bill which had earlier been photocopied to record the serial number.
At about 10:30 a.m. on the same day, a plain clothes officer who was part of the same undercover police team entered the area trying to identify defendant. However, defendant apparently identified him as a police officer and fled on a bicycle. The bike hit a curb and tipped over, and as defendant was falling he threw away several glassine bags of heroin which the police recovered. When arrested, defendant also had the $20 bill which the first undercover officer had given him. To state the obvious, there was overwhelming proof of defendant's guilt.
The 9:00 and 10:30 incidents were made the subjects of two separate indictments. Based on the evidence described above, defendant was convicted of the following offenses on the first indictment: third degree possession of controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1); third degree possession with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3); second degree possession of CDS with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1; and third degree distribution of CDS within 1,000 feet of school property, N.J.S.A. 2C-35-7.
With respect to the second indictment, he was found guilty of: third degree possession of CDS, N.J.S.A. 2C:35-10a(1); third degree possession with intent to distribute, N.J.S.A. 2C:35- 5a(1) and 2C:35-5(b)(3); third degree possession with intent to distribute CDS within 1,000 feet of school property, N.J.S.A. 2C:35-7; second degree possession with intent to distribute CDS within 500 feet of a public housing facility, N.J.S.A. 2C:35- 7.1; and second degree distribution of CDS within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1.
The trial court rejected defendant's arguments for merger of all convictions arising from both incidents, relying on State v. Williams, 229 N.J. Super. 179, 183-84 (App. Div. 1988). However, he merged the offenses arising from each indictment. After merging the offenses arising from the first indictment, the trial court sentenced defendant to ten years in prison with a three year parole disqualifier for second-degree "possession of heroin with intent to distribute in a public zone." The trial judge merged all of the counts of the second indictment into a conviction for distribution of CDS within 500 feet of a public housing facility, and imposed a consecutive ten year sentence with a three year parole disqualifier.*fn1 At the sentencing, the judge indicated that if he had not imposed two consecutive ordinary-term sentences, he would have imposed an extended-term sentence on one of the second-degree CDS offenses. In other words, even if the judge had merged all of the convictions into one second-degree CDS offense, he would have imposed twenty years with a six-year parole bar as an extended term.
On defendant's direct appeal, he raised the following points:
POINT I: THE STATE COMMITTED SIGNIFICANT MISCONDUCT IN SUMMATION, AND THE TRIAL COURT'S REMEDIAL INSTRUCTIONS WERE INSUFFICIENT TO AMELIORATE THE CONSEQUENT PREJUDICE.
POINT II: THE TRIAL COURT'S INSTRUCTIONS FAILED UNDER THE UNUSUAL CIRCUMSTANCES OF THE CASE, TO ADEQUATELY APPRISE THE JURY THAT THE DEFENDANT WAS ENTITLED TO SEPARATE CONSIDERATION OF EACH CHARGE, AND ...