On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-03-0210.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Gilroy.
In March 2004, a Grand Jury charged defendant Claude Williams, Jr., with third-degree possession of a controlled dangerous substance (CDS) (heroin and/or 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 N.J.S.A. 2C:35-5b (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 (count three); and second-degree possession of a CDS with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (count four). The case was tried to a jury on August 5 and 6, 2003. At the conclusion, the court granted a judgment of acquittal on count three, and the jury found defendant guilty on the remaining counts.
On September 12, 2003, the court granted the State's motion to sentence defendant to a discretionary extended term pursuant to N.J.S.A. 2C:44-3a. After finding aggravating sentencing factors N.J.S.A. 2C:44-1a(3), (6), and (9), and no mitigating sentencing factors, N.J.S.A. 2C:44-1b, the court sentenced defendant on count four to an extended term of imprisonment of sixteen years with a seven-year period of parole ineligibility. The court merged the convictions on counts one and two with count four, and ordered defendant to pay all appropriate fines and penalties. Lastly, the court suspended defendant's driving privileges for one year.
On appeal, we affirmed the convictions, but vacated the sentence and remanded to the trial court to re-sentence defendant pursuant to State v. Natale, 184 N.J. 458 (2005). State v. Williams, No. A-3212-03 (App. Div. December 1, 2005). Defendant filed a petition for certification to the Supreme Court.
On January 6, 2006, while defendant's petition was pending, the trial court re-sentenced defendant as it had previously. On August 7, 2006, the Supreme Court granted defendant's petition for certification and summarily remanded the matter to the trial court for re-sentencing in light of the Court's then recent decision in State v. Pierce, 188 N.J. 155 (2006). State v. Williams, 188 N.J. 269 (2006). On October 20, 2006, the trial court re-sentenced defendant pursuant to the Court's remand, and again imposed the same sentence. Defendant appeals.
On appeal, defendant argues:
UNDER THE STATE AND FEDERAL CONSTITUTIONS, WILLIAMS IS ENTITLED TO HAVE THE JURY, RATHER THAN THE JUDGE, DETERMINE WHETHER HE HAD THE REQUISITE PRIOR CONVICTIONS TO QUALIFY FOR A DISCRETIONARY EXTENDED TERM UNDER N.J.S.A. 2C:44-3(a). (Partially Raised Below).
THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING WILLIAMS TO A 16-YEAR TERM WITH SEVEN YEARS OF PAROLE INELIGIBILITY, AND ALSO IGNORED A MITIGATING FACTOR CLEARLY IN THE RECORD.
We have considered defendant's arguments in light of the record and applicable law. We conclude that the arguments are without sufficient merit to warrant discussion in a written opinion. R. ...