STATE OF NEW JERSEY v. NADIR BAPTISTE

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
 
 
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1060-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

NADIR BAPTISTE,

Defendant-Appellant.

__________________________________

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May 23, 2006

Submitted: May 8, 2006 - Decided:

Before Judges Cuff and Parrillo.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 98-07-0928; 98-09-1232; 99-12-1672.

Yvonne Smith Segars, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Andrew Chamberlain, Assistant Prosecutor, of counsel and on the brief).

 
PER CURIAM
A jury found defendant guilty of third degree possession of a controlled dangerous substance (CDS) (cocaine), contrary to N.J.S.A. 2C:35-10a(1). Defendant was sentenced to a five-year prison term with an eighteen-month period of parole ineligibility. This term is to be served consecutive to a four-year term imposed for a violation of probation. See footnote 1
On appeal, defendant raises the following arguments:
POINT I- DEFENDANT WAS DENIED A FAIR TRIAL SINCE THE STATE REVEALED HIS USE OF AN ALIAS FOLLOWING HIS ARREST.

POINT II- THE SENTENCE IMPOSED BY THE COURT IS EXCESSIVE.

POINT III- THE DEFENDANT RECEIVED AN ILLEGAL SENTENCE.
[NOT PRESENTED BELOW].

We have examined the record in its entirety and conclude that defendant's argument that he was denied a fair trial because the jury learned he used an alias is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The record demonstrates that the reference to the alias was fleeting and immediately corrected by the trial judge.
We remand for resentencing, however, on the offense submitted to the jury, the third degree possession of CDS count, in light of the recent ruling in State v. Natale, 184 N.J. 458 (2005) (Natale II). The five-year term is the maximum sentence allowed by statute and one year beyond the four-year presumptive term. N.J.S.A. 2C:43-6a; N.J.S.A. 2C:44-1f(1)(d). On resentencing, the court shall

determine whether the absence of the presumptive term in the weighing process requires the imposition of a different sentence. The court should not make new findings concerning the quantity or quality of aggravating and mitigating factors previously found. Those determinations remain untouched by this decision. Because the new hearing will be based on the original sentencing record, any defendant challenging his sentence on Blakely See footnote 2 grounds will not be subject to a sentence greater than the one already imposed.

[Natale II, supra, 184 N.J. at 495-96.]

When the sentence is reconsidered, defendant may argue that the consecutive term renders the sentence excessive. We note, however, that consecutive terms do not implicate the due process concerns identified in Blakely or Natale II. State v. Abdullah, 184 N.J. 497, 512 (2005).
The conviction is affirmed; the matter is remanded for reconsideration of the sentence.
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Footnote: 1 On August 10, 1998, defendant pled guilty to a single count of third degree possession of CDS with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1). On December 10, 1998, defendant pled guilty to third degree possession of CDS with intent to distribute within 1000 feet of school property, contrary to N.J.S.A. 2C:35-7. The court imposed a sentence of 428 days with credit for 428 already served and three years probation on the possession with intent to distribute offense. The judge imposed a three-year period of probation on the school zone offense. On April 11, 2002, defendant was served with a notice of violation of probation for failing to remain arrest free. At sentencing, Judge Triarsi found defendant guilty of the probation violation, discharged defendant from probation and imposed a four-year term of imprisonment on the third degree school zone offense.
Footnote: 2 Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).


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