On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 08-12-2231.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 27, 2012
Before Judges Alvarez and Ostrer.
A jury convicted defendant, Raheem Pamplin, in absentia, of second-degree possession of a controlled dangerous substance (CDS) heroin, with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(2) (count one); second-degree employing a juvenile in a drug distribution scheme, N.J.S.A. 2C:35-6 (count two); second-degree possession of a firearm during a drug offense, N.J.S.A. 2C:39-4.1a (count three); and second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a (count four). After granting the State's motion to sentence defendant as a persistent offender under N.J.S.A. 2C:44-3a to an extended term on count one, the court sentenced defendant to eighteen years, with nine years of parole ineligibility on count one; nine years on count two; and nine years with four-and-a-half years of parole ineligibility on count three. Count four was merged into count three. Each sentence was to run consecutive to the others, resulting in an aggregate sentence of thirty-six years, with thirteen-and-a-half years of parole ineligibility.
Defendant appeals his conviction of counts three and four, involving weapons possession, and challenges his sentence. He presents the following points for our consideration:
THE STATE'S EVIDENCE WAS INSUFFICIENT TO PROVE POSSESSION OF THE WEAPON BY DEFENDANT. U.S. Const. Amend. XIV; N.J. Const. Art. I,
POINT II DEFENDANT'S SENTENCE WAS EXCESSIVE. U.S. Const. Amends. VIII, XIV; N.J. Const. Art I,
We affirm defendant's conviction, but remand for resentencing.
Defendant sold heroin to an undercover police officer. Joining him as a look-out was his fifteen-year-old nephew J.P. Defendant and J.P. were both arrested shortly after the transaction. Police discovered that J.P. possessed a .45 caliber Hi-Point automatic handgun in the front waistband of his pants. In order to establish guilt under N.J.S.A. 2C:39-4a, possession of a handgun for an unlawful purpose, and N.J.S.A. 2C:39-4.1a, possession of a handgun in the course of a CDS offense, the State had to establish defendant possessed the handgun, actually or constructively. There was no evidence at all that defendant actually possessed the ...