On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 10-01-0044.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Waugh.
Defendant Daniel Hardina appeals from his conviction, following a guilty plea, for second-degree possession with intent to distribute cocaine in a quantity of one-half ounce or more, contrary to N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2) (count one); and one count of third-degree possession with intent to distribute within 1000 feet of school property, contrary to N.J.S.A. 2C:35-7(a) (count two), as well as the resulting aggregate sentence of incarceration for five years with an eighteen-month period of parole ineligibility. We affirm the conviction and aggregate sentence, but remand for correction of the judgment of conviction (JOC) to reflect the required merger of offenses.
We discern the following facts and procedural history from the record on appeal.
On the morning of December 28, 2009, Bound Brook Police Sergeant Robert Lavin was assigned to investigate a report that there was a fight in progress at a house on Talmadge Avenue in Bound Brook. When he arrived in the area, he observed a disoriented man, later identified as Hardina, staggering in the middle of the street. Hardina's pants were around his thighs and he was holding his shirt. Lavin observed redness on Hardina's chest and a small abrasion on his forehead. There was a white, powdery residue on his nostrils and mouth.
Lavin directed Hardina to sit on the curb. He asked Hardina what had happened, but his reply was mumbled and indecipherable. At that point, a woman approached from the direction of the house on Talmadge Avenue, yelling that Hardina had taken her necklace.
Lavin placed Hardina in the back of his patrol car and again asked him what had happened. Hardina responded that he and the woman had been "doing some coke" in the house and that the woman had gone "nuts." He also told Lavin that a struggle had ensued, after which the woman chased him as he ran from the house.
Lavin then questioned the woman, who told him that Hardina had assaulted her, and that he had ripped the necklace from her neck and put it in his underpants. When Hardina began vomiting in the patrol car, Lavin called for medical assistance because he was concerned that Hardina might be suffering from a cocaine overdose.
When the ambulance arrived, the EMTs rendered medical assistance, put Hardina on a gurney, and placed him in the back of the ambulance. Lavin requested the EMTs to check Hardina's underpants for the necklace, which was not found. However, during the search, the EMTs found a bag of cocaine and a smaller bag of crack cocaine. At that point, Lavin placed Hardina under arrest. The ambulance transported him to the hospital.
Hardina was indicted in January 2010. He was also charged with two other offenses: the disorderly persons offense of simple assault, contrary to N.J.S.A. 2C:12-1(a)(1), and the petty disorderly persons offense of disorderly conduct, contrary to N.J.S.A. 2C:33-2(a)(1). He filed a motion to suppress the evidence, which was the subject of an evidentiary hearing in July 2010. The motion was denied. We denied Hardina's motion for leave to appeal.
Hardina pled guilty to both counts of the indictment on November 5, 2010. As part of the plea agreement, the State offered to recommend an aggregate sentence of five years incarceration with an eighteen-month period of parole ineligibility, and also promised not to seek an extended term. On December 17, 2010, Hardina was sentenced in conformity with the plea offer, with the two sentences ...