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State v. Barley

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 12, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
TERRENCE BARLEY, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 07-11-2611 and 08-02-0340.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 29, 2010

Before Judges Gilroy and Ashrafi.

Defendant Terrence Barley appeals his concurrent sentences on separate counts of possession of cocaine with intent to distribute in a school zone and near a public housing facility. We remand to the trial court to merge the two counts for purposes of sentencing but otherwise affirm the sentence imposed.

The twenty-one year-old defendant was arrested on drug and other charges a total of ten times in two years, including seven times in 2007. On October 13, 2007, while serving concurrent terms of probation on three previous indictments, defendant was observed by an Atlantic City police officer making a hand-to-hand sale of an illegal drug on the street. The officer stopped and searched defendant. He seized a quantity of crack cocaine and $133 from defendant's person. The location of the hand-to-hand transaction, or defendant's arrest, was within 1,000 feet of Oceanside Charter School and within 500 feet of Stanley Holmes Village, a public housing facility.

On November 19, 2007, an Atlantic County grand jury returned Indictment Number 07-11-2611 charging defendant in five counts: (count one) third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1); (count two) third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(3); (count three) third-degree distribution of cocaine, N.J.S.A. 2C:35-5a(1) and -5b(3); (count four) third-degree possession of cocaine with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7; and (count five) second-degree possession of cocaine with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1.

Following his arrest, release on bail, and indictment on those charges, defendant was arrested again on December 31, 2007, in possession of cocaine. On February 11, 2008, a grand jury returned Indictment Number 08-02-0340 charging defendant with a third-degree count of possession of cocaine, N.J.S.A. 2C:35-10a(1).

On April 30, 2008, defendant entered into a plea agreement with the State. He pleaded guilty to counts four and five of Indictment Number 07-11-2611 and to the single count in Indictment Number 08-02-0340. The sentencing provision of the plea agreement stated that the prosecutor would recommend a sentence of six years in New Jersey State Prison on counts four and five of the first indictment, to run concurrently with each other, three years' imprisonment on the second indictment to run concurrently with the other sentences, and the sentences on both indictments to run concurrently with anticipated sentences on violation of probation charges then pending against defendant.

On August 8, 2008, defendant was sentenced on a total of five indictments, the two recited here and the three previous indictments for which defendant had been serving sentences of probation. On count four of Indictment Number 07-11-2611, the third-degree school zone count, the court sentenced defendant to three years' imprisonment and statutorily-required money penalties totaling $1,205. On count five of the same indictment, the second-degree public housing count, the court sentenced defendant to six years' imprisonment with three years of parole ineligibility, to run concurrently with the sentence on count four, and money penalties totaling $2,175.

On Indictment Number 08-02-0340, the third-degree possession charge arising from the December 31, 2007 arrest, the court sentenced defendant to a concurrent term of three years' imprisonment and money penalties totaling $1,175. The court also sentenced defendant to concurrent terms of either three years or 365 days in prison on each of the three indictments pursuant to which violation of probation charges were brought.

Defendant filed a notice of appeal from his sentences. By order dated November 17, 2009, we transferred the appeal from an excessive sentencing calendar under Rule 2:9-11 to our regular calendar. On appeal, defendant argues:

POINT I

BECAUSE BARLEY POSSESSED THE SAME COCAINE WITH THE INTENT TO DISTRIBUTE WHILE HE WAS IN BOTH A SCHOOL ZONE AND A PUBLIC HOUSING ZONE, THE CONVICTIONS FOR THE TWO DRUG OFFENSES MERGE FOR SENTENCING PURPOSES.

POINT II

THE BASE SENTENCE SHOULD BE REDUCED TO FIVE YEARS, BECAUSE THE MANDATORY THREE-YEAR PAROLE DISQUALIFIER IS ADEQUATE TO DETER DEFENDANT FROM COMMITTING FUTURE OFFENSES.

We reject the second point but agree with the first point that counts four and five of Indictment Number 07-11-2611 should have been merged for purposes of sentencing.

In State v. Parker, 335 N.J. Super. 415, 426 (App. Div. 2000), we held that merger was required for conviction on possession of cocaine with intent to distribute in a school zone and near a public facility because "the underlying offending conduct consist[ed] solely of possession of cocaine on a single date, in a single location. Fortuitously, this single location fell within two statutorily separately prohibited zones." Here, defendant was arrested in possession of cocaine at a location within the two statutorily prohibited zones.

On the merged counts, an appropriate sentence would be within the second-degree range under N.J.S.A. 2C:35-7.1 but also imposing the mandatory period of parole ineligibility required by N.J.S.A. 2C:35-7. See Parker, supra, 335 N.J. Super. at 420.

Citing State v. Crawley, 149 N.J. 310 (1997), and State v. Truglia, 97 N.J. 513 (1984), the State argues that, by his plea agreement, defendant waived his right to claim merger of the two counts. The cited cases were not clear merger situations as is this case. We find no explicit or implicit waiver of defendant's right to claim entitlement to merger of the counts here in accordance with our holding in Parker, supra, 335 N.J. Super. 415.

As to defendant's second point, that his six-year base sentence on the second-degree public housing count should be reduced to five years, we deem the argument without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

The sentence imposed on count four of Indictment Number 07-11-2611 is vacated, and the matter is remanded to the sentencing court for entry of an amended judgment of conviction merging count four with count five.

20101012

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