On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment Nos. 05-09-0745 and 05-09-0746.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 4, 2009
Before Judges Lihotz and Ashrafi.
Following a trial by jury, defendant, Ozcan Demirbulakli, was convicted of three counts of third-degree distribution of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (counts one, three and four); third- degree distribution of a CDS within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count two); and third-degree possession of a CDS with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count five). Thereafter, a second trial was conducted on the separately indicted charge of fourth-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(a). The same jury acquitted defendant of that offense. Finally, defendant was convicted by the court, sitting without a jury, of the disorderly persons offense of possession of drug paraphernalia, N.J.S.A. 2C:36-2.
On count one, the trial judge granted the State's motion for an extended term sentence, N.J.S.A. 2C:43-6(f); R. 3:21-4(e), and imposed a nine-year term of imprisonment with a three and one-half year period of parole ineligibility. On counts three, four and five, the court sentenced defendant to concurrent five-year flat terms and imposed applicable fines and penalties.
Defendant presents the following issues for review on appeal:
THE COURT'S CHARGE TO THE JURY ON THE MISTAKE-OF-FACT OR-LAW AFFIRMATIVE DEFENSE WAS ERRONEOUS DENYING DEFENDANT HIS RIGHT TO DUE PROCESS AND TO A FAIR TRIAL. ALTERNATIVELY, DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL. U.S. CONST. FIFTH AND SIXTH AMENDS.; N.J. CONST. ART. 1 PARS. 1 & 10. (Not Raised Below).
A. The Court's charge On Mistake-Of-Fact Or Law Defense Denied Defendant His Rights to Due Process And A Fair Trial.
B. Alternatively, Defendant Was Denied Effective Assistance Of Counsel.
THE DEFENDANT'S EXTENDED TERM, PURSUANT TO N.J.S.A. 2C:43-6(f), OF A NINE-YEAR BASE TERM WITH A THREE AND ONE-HALF-YEAR PERIOD OF PAROLE INELIGIBILITY, IS MANIFESTLY EXCESSIVE AND REQUIRES REMAND UNDER STATE V. PIERCE, 188 N.J. 155 (2006). (Not Raised Below).
A. The Defendant's Nine-Year Extended Term Is Manifestly Excessive.
B. The Defendant Is Entitled To A Remand Pursuant To State v. Pierce.
After our review of the arguments submitted, in light of the record and applicable law, we affirm.
We summarize the facts. On August 3, 2005, defendant sold three grams of cocaine to Meredith Roberts, an undercover detective employed by the narcotics unit of the Somerset County Prosecutor's Office (SCPO), at a Dunkin' Donuts in Branchburg. The sale was arranged by a confidential informant working with the SCPO, who accompanied Roberts. When Roberts arrived, defendant and a man defendant identified as "Mark" were waiting in an ice cream truck. Roberts was motioned to go to the service window of the truck, where she was asked how many she wanted. Based on her response, Roberts was given three bags containing cocaine for which she paid $180.
Two days later, Roberts called defendant to arrange another purchase. Defendant met Roberts at a different Branchburg location and sold her three grams of cocaine. During this transaction, Roberts was alone and wearing a wire. Defendant was driving a Lincoln Town car and removed the drugs from under the lining of the passenger-side sun visor. Roberts paid defendant $180.
On August 8, 2005, Roberts called defendant's cell phone and arranged a third drug purchase. The sale was scheduled at a Dunkin' Donuts in Bound Brook. While en route, Roberts received a call from defendant changing the location to a BP gasoline station. The transaction occurred with Roberts paying $180 for three grams of ...