NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted on June 4, 2013
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-10-1618.
Joseph E. Krakora, Public Defender, attorney for appellant (Lauren S. Michaels, Assistant Deputy Public Defender, of counsel and on the brief).
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Michelle E. Ditzhazy, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Reisner and Hayden.
Following a jury trial, defendant Dashawn Rouse appeals from his December 19, 2008 judgment of conviction and sentence. For the reasons that follow, we affirm his conviction and extended sentence, but remand for resentencing so that the period of parole eligibility can be determined in accordance with this opinion.
We discern the following facts from the record. On August 4, 2007, the Jersey City police, investigating a report of a woman taking drugs in a stairway of a public housing project, came upon defendant, who fled when he saw the police. Defendant discarded a plastic bag as he ran. The police pursued and arrested defendant for several drug-related charges in a school zone and around a public housing complex. Defendant's friend, Darryl Maxwell, claimed defendant was attending a barbeque when the police began chasing him.
On September 27, 2007, a grand jury indicted defendant for (count one) third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1); (count two) third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3); (count three) third-degree possession with intent to distribute cocaine within 1000 feet of a school zone, N.J.S.A. 2C:35-7; (count four) 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; (count five) third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1); (count six) third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3); (count seven) third-degree possession with intent to distribute heroin within 1000 feet of a school zone, N.J.S.A. 2C:35-7; and (count eight) second-degree possession of heroin with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1.
After a four-day trial, the jury found defendant guilty of all charges. The judge merged counts one, two, and three with count four and merged counts five, six, and seven with count eight. He granted the State's motion for a discretionary extended term under N.J.S.A. 2C:44-3(a) and sentenced defendant to an aggregate twelve years in prison, with a six-year period of parole ineligibility.
On appeal, defendant raises the following contentions for our consideration.
I.THE JUDGE FAILED TO PROPERLY INVESTIGATE SEXUAL ADVANCES MADE BY BOTH DEFENDANT'S FRIEND AND THE SOLE DEFENSE WITNESS TOWARD TWO JURORS, DENYING MR. ROUSE HIS RIGHT TO AN IMPARTIAL JURY AND A FAIR TRIAL.
II.THE INSTRUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT CREATED THE IMPRESSION THAT HE HAD AN OBLIGATION TO TESTIFY, VIOLATING HIS CONSTITUTIONAL RIGHT TO REMAIN SILENT. (Not Raised Below).
III.THE JUDGE ERRED IN IMPOSING AN EXTENDED TERM, DOUBLE-COUNTED AND IMPROPERLY WEIGHED AGGRAVATING FACTORS, IMPROPERLY IMPOSED A MANIFESTLY EXCESSIVE PAROLE-DISQUALIFIER, AND FAILED TO PROVIDE A STATEMENT OF REASONS FOR THE SENTENCE IMPOSED; MR. ROUSE IS ALSO ENTITLED TO RESENTENCING UNDER THE AMENDED SCHOOL-ZONE STATUTE.
A. The court erred in imposing an extended term.
B. The court erred in setting the base term of 12 years due to improper double-counting.
C. The court erred in its finding on aggravating factors.
D. The court failed to provide a statement of reasons for the sentence imposed.
E. The court erred in imposing a six-year parole disqualifier, which was twice as long as the then-required mandatory minimum.
F. Mr. Rouse is entitled to be resentenced under the amended school-zone statute, which eliminated the ...