On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 00-06-0583.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 27, 2009
Before Judges Lihotz and Ashrafi.
Defendant appeals from denial of his petition for post conviction relief (PCR) alleging ineffective assistance of counsel with respect to a single answer on cross-examination given by a police detective at his trial. He also contends for the first time on this appeal that his sentence to a mandatory extended term under N.J.S.A. 2C:43-6f is an illegal sentence. We affirm denial of defendant's PCR petition alleging ineffective assistance of counsel but remand to the trial court for resentencing.
At defendant's jury trial in 2001, the State presented testimony that Detective Trommelen, a Paterson narcotics detective, was conducting surveillance of a drug trafficking area when he observed defendant approach a car and engage in a hand-to-hand transaction. Some minutes later, other detectives approached defendant as he was walking away from the scene. Defendant jumped on the hood of a police car and tried to flee, but the detectives apprehended him. They found a plastic bag hanging from defendant's coat pocket, and inside the bag, they found twenty-five smaller bags of crack cocaine and nineteen bags of heroin. Defendant also had $302 on his person.
Defendant's girlfriend testified at the trial that she had dropped him and his son off to visit the child's mother, and that she had not seen any drugs on defendant's person. Two other friends of defendant, both with criminal convictions, testified they were in the area that night and that defendant did not have any drugs on his person.
The jury convicted defendant of all counts of the indictment: (count one) third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1); (count two) third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(3); (count three) third-degree possession of CDS with intent to distribute within 1,000 feet of a school, N.J.S.A. 2C:35-7 and 2C:35-5a; and (count four) second-degree possession of CDS with intent to distribute within 500 feet of public housing, N.J.S.A. 2C:35-7.1 and 2C:35-5a.
At defendant's sentencing on October 12, 2001, the judge noted that his record included several juvenile offenses, three prior indictable convictions including a conviction for distribution of CDS, several municipal court convictions, and a number of arrests and serious pending charges after he posted bail and was released on the charges in this case.
Before the sentencing hearing, the State had moved for an extended term under both N.J.S.A. 2C:43-6f and N.J.S.A. 2C:44-3a. The former statute requires imposition of a mandatory extended term for a repeated conviction involving distribution of CDS. The latter statute provides discretion to the sentencing court to impose an extended term upon a persistent offender as defined in the statute. Here, the sentencing court granted the State's motion for a mandatory extended term under N.J.S.A. 2C:43-6f and did not further address the motion for a discretionary extended term under the persistent offender statute.
In determining the sentence, the court found four aggravating factors applicable: the risk that defendant would offend again, the extent and seriousness of his criminal record, the need for deterrence, and a sentence without imprisonment would be perceived as the cost of doing the business of selling drugs. N.J.S.A. 2C:44-1a(3), (6), (9), and (11). Under N.J.S.A. 2C:44-1b, the court found no applicable mitigating factors.
After merging the first three counts into count four, second-degree distribution of CDS near public housing, the court sentenced defendant to an extended term of eighteen years in prison, with nine years to be served before parole eligibility, a sentence in the first-degree range. Defendant's sentence also included monetary penalties as provided by statutes.
Defendant appealed his conviction and sentence, and we affirmed both in an unpublished opinion. State v. Armstead, No. A-4232-01T4 (App. Div. May 23, 2003). The Supreme Court denied defendant's petition for certification. State v. Armstead, 177 N.J. 577 (2003).
In April 2004, defendant filed his petition for PCR. The same judge who had tried the case and sentenced defendant heard argument on the petition in January 2008.*fn1 The judge denied the petition by order and written opinion dated January 22, 2008.
With different appellate counsel on this appeal, defendant raises the following points:
POINT I THE DEFENDANT'S SENTENCE MUST BE REMANDED AS HIS EXTENDED TERM IS NOT AUTHORIZED BY LAW.
THE CRIME FOR WHICH HE WAS SENTENCED IS NOT ONE OF THE SENTENCES CONTAINED IN THE MANDATORY EXTENDED TERM PROVISION OF N.J.S.A. 2C:43-6f. (Not Raised Below)
POINT II DEFENDANT WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL ATTORNEY ELICITED "OTHER CRIMES" TESTIMONY FROM A STATE'S WITNESS, AND WHEN HIS ...