On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Morris County, Indictment Nos. 05-05-0595, 05-07-0952 and 05-08-1007.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 7, 2010
Before Judges Payne and Messano.
Defendant Gustavo Marin appeals from the judgment of conviction and sentence imposed following his guilty pleas to third-degree distribution of cocaine, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3), and second-degree distribution of cocaine within 500 feet of a public park, N.J.S.A. 2C:35-7.1a; fourth-degree unlawful taking of a means of conveyance, N.J.S.A. 2C:20-10b, in another indictment; and fourth-degree criminal trespass, N.J.S.A. 2C:18-3, in a third indictment. Prior to the imposition of sentence, defendant moved to withdraw his guilty pleas. The motion was denied, and, in accordance with the plea bargain, defendant was sentenced to a term of eight years' imprisonment on the violation of N.J.S.A. 2C:35-7.1. Concurrent sentences on the other two indictments were also imposed, as well as appropriate financial and other penalties.
Defendant's appeal of his sentence was listed on our Excessive Sentence Oral Argument calendar. The transcript of those proceedings reveals the panel concluded that defendant's argument regarding the denial of his motion to withdraw his guilty pleas would be more appropriately considered after a full briefing by the parties. Thus, the appeal was placed on a regular, plenary calendar.
Defendant now raises the following issues:
"BLACHLEY MONUMENT" IS NOT A "PUBLIC PARK" WITHIN THE MEANING OF N.J.S.A. 2C:35-7.1[f]. THEREFORE, THE FACTUAL BASIS FOR THE CONVICTION OF DISTRIBUTION OF A CONTROLLED DANGEROUS SUBSTANCE WITHIN 500' OF CERTAIN PUBLIC PROPERTY IS INSUFFICIENT.
DEFENDANT'S FACTUAL BASIS AT HIS PLEA HEARING DOES NOT ESTABLISH THE ESSENTIAL ELEMENT OF N.J.S.A. 2C:35-7.1, THAT THE DRUG DISTRIBUTION OCCURRED WITHIN 500 FEET OF A "PUBLIC PARK." THEREFORE, DEFENDANT'S CONVICTION OF COUNT VIII OF INDICTMENT NO. 05-07-0952 MUST BE VACATED.
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO WITHDRAW HIS PLEA OF GUILTY BASED UPON THE ERRONEOUS FINDING THAT "BLACHLEY MONUMENT" IS A PUBLIC PARK AS DEFINED IN N.J.S.A. 2C:35-7.1.
We have considered these arguments in light of the record and applicable legal ...