On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-12-3724.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 4, 2010
Before Judges Lisa and Alvarez.
Defendant James T. Crawford appeals both the sentence imposed after the entry of an unconditional guilty plea to drug distribution, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3), as well as the denial of his application for reconsideration of the sentence. We affirm.
Despite the notice of appeal specifying that defendant sought review of the decision to deny his motion for reconsideration, and although the written opinion of the court is supplied in defendant's appendix, defendant does not address the issue in his brief. We will assume that the appeal on that point is withdrawn. See Jefferson Loan Co. v. Session, 397 N.J. Super. 520, 525 n. 4 (App. Div. 2008).
We note, however, that the trial judge on the application for reconsideration addressed the principal issue defendant raises on this appeal, namely, that he should have been sentenced on the guilty plea pursuant to a different statute to a lesser crime. The argument is premised on defendant's claim that Alprazolam, or Xanax, falls under the category of prescription legend drugs, not controlled dangerous substances, and that therefore defendant should have been sentenced in the fourth-degree range and not the third-degree range. See N.J.S.A. 2C:43-1 and 2C:43-6. Defendant's points on appeal are:
THE INDICTMENT SHOULD BE DISMISSED OR THE DEFENDANT SHOULD BE SENTENCED AS A FOURTH DEGREE OFFENDER (Partially Raised Below)
A. THE INDICTMENT SHOULD BE DISMISSED BECAUSE THE LAW THAT WAS BREACHED BY DEFENDANT WAS PROMULGATED IN VIOLATION OF THE SEPARATION OF POWERS DOCTRINE (Not Raised Below)
B. THE DEFENDANT SHOULD BE SENTENCED AS A FOURTH DEGREE OFFENDER, AS XANAX IS A PRESCRIPTION LEGEND DRUG
a guilty plea to the sale of one Xanax pill and on May 11, 2007, in accord with the plea agreement, was sentenced to three years imprisonment. Appropriate fines and penalties were assessed. His motion for reduction of sentence was denied on October 17, 2007. When he established his factual basis, defendant testified that while "in the area of Broad and Market Street[s]" in Newark on August 23, 2006, he possessed Alprazolam, or Xanax, and unlawfully sold one pill.
Defendant first challenges the legality of the indictment to which he entered a guilty plea based on a "separation of powers" argument. We will not address the claim for the following reasons. Rule 3:9-3(f)*fn1 provides the mechanism enabling a defendant to enter a guilty plea while preserving
With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty reserving on the record the right to appeal from the adverse determination of any specified pretrial motion. If the defendant prevails on appeal, the defendant shall be afforded the opportunity to withdraw his or her plea. Nothing in this rule shall be construed as limiting the right of appeal provided for in [Rule] 3:5-7(d). issues for review with the State's consent. State v. Knight, 183 N.J. 449, 471 (2005). Absent compliance with the rule's requirements, defendant, whose guilty plea is not otherwise repudiated, cannot now be heard to challenge the legality of the indictment. Having entered an unconditional plea, defendant may only raise Fourth Amendment claims or appeal the ...