On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 07-11-2611 and 08-02-0340.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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:
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 ...