STATE OF NEW JERSEY v. CLAUDE WILLIAMS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3212-03T43212-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CLAUDE WILLIAMS,

Defendant-Appellant.

____________________________________

 

Submitted November 15, 2005 - Decided

Before Judges Skillman and Axelrad.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-03-0210.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

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

PER CURIAM

A jury found defendant guilty of possession of cocaine, in violation of N.J.S.A. 2C:35-10a(1); possession of cocaine with the intent to distribute, in violation of N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3); and possession of cocaine within 500 feet of public property with the intent to distribute, in violation of N.J.S.A. 2C:35-7.1. The court granted the State's motion to sentence defendant to an extended term as a persistent offender and imposed a sixteen-year term of imprisonment, with seven years of parole ineligibility, for possession of cocaine within 500 feet of school property with the intent to distribute. The court merged defendant's other convictions. The court also imposed the statutorily mandated fines, penalties and fees.

On appeal, defendant presents the following arguments:

I. THE ADMISSION OF EXPERT TESTIMONY ON DRUG TRAFFICKING THAT INCLUDED NOT ONLY GENERAL METHODS OF DRUG DISTRIBUTION BUT ALSO THE OPINION THAT DEFENDANT HAD ENGAGED IN STREET-LEVEL DRUG DISTRIBUTION IMPERMISSIBLY INVADED THE PROVINCE OF THE JURY. (Not Raised Below)

II. IMPOSITION OF A DISCRETIONARY, ABOVE THE PRESUMPTIVE, EXTENDED TERM OF SIXTEEN YEARS WITH A SEVEN YEAR PAROLE DISQUALIFIER VIOLATES DEFENDANT'S CONSTITUTIONAL RIGHTS TO TRIAL BY JURY AND DUE PROCESS OF LAW. (Not Raised Below)

III. THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING AN EXTENDED TERM OF SIXTEEN YEARS WITH SEVEN YEARS OF PAROLE INELIGIBILITY.

Defendant's first point is clearly without merit. R. 2:11-3(e)(2); see State v. Summers, 176 N.J. 306, 312-17 (2003); State v. Odom, 116 N.J. 65, 70-81 (1989). Moreover, even if some portion of the testimony of the State's expert witness had been improper, we would conclude that the error in allowing that testimony was harmless in view of the overwhelming other evidence of defendant's guilt.

Under Point II of his brief, defendant argues that both his sentence to an extended term as a persistent offender under N.J.S.A. 2C:44-3(a) and his sentence to a sixteen-year term of imprisonment, one year in excess of presumptive fifteen-year term established by N.J.S.A. 2C:44-1(f)(1), violated the jury trial rights recognized in Blakeley v. Washington, 524 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

In State v. Dixon, 346 N.J. Super. 126, 140 (App. Div. 2001), certif. denied, 172 N.J. 181 (2002), we held that "[t]he prerequisites to an enhanced sentence under N.J.S.A. 2C:44-3a are related to the issue of 'recidivism' and may be found by the judge without presentation to the jury." We have repeatedly reaffirmed this holding, most recently in State v. Young, 379 N.J. Super. 498, 510 (App. Div. 2005). We adhere to Dixon and Young and therefore reject defendant's argument that jury fact-finding was a prerequisite to his sentence to an extended term as a persistent offender.

However, the court's imposition of a sentence in excess of the fifteen-year presumptive extended-term sentence for a second-degree offense brings into play our Supreme Court's recent decision in State v. Natale, 184 N.J. 458, 466 (2005), which held that "a sentence above the presumptive statutory term based solely on a judicial finding of aggravating factors, other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee." The Court further held that "[t]o bring the Code [of Criminal Justice] into compliance with the Sixth Amendment in a way that the Legislature would have intended, . . . presumptive terms [must be eliminated] from the sentencing process." Ibid. Therefore, under Natale, a trial court is now required to sentence a defendant within the statutory range, after identifying and weighing applicable mitigating and aggravating factors, "without reference to presumptive terms." Ibid. This holding applies to any defendant with a case "on direct appeal as of the date of [the Natale] decision." Id. at 494. Any such defendant is entitled to "a new sentencing hearing . . . based on the record at the prior sentencing." Id. at 495. "At the new hearing, the trial court must determine whether the absence of the presumptive term in the weighing process requires the imposition of a different sentence." Id. at 495-96.

The trial court sentenced defendant to a term of imprisonment in excess of the presumptive fifteen-year term. Defendant's case was on direct appeal to this court when Natale was decided. Therefore, defendant is entitled to a new sentencing hearing in which the presumptive statutory term of fifteen years is not considered.

We reject defendant's argument that the sentencing record did not justify imposition of an extended term as a persistent offender. The sentencing record, particularly defendant's lengthy criminal history, adequately supports the trial court's conclusion that an extended-term sentence was "necessary for the protection of the public." State v. Dunbar, 108 N.J. 80, 90 (1987).

Because defendant must be resentenced in conformity with Natale, there is no need to consider the argument that his sentence was excessive.

 
Accordingly, we affirm defendant's conviction and the grant of the State's motion to sentence defendant to an extended term. We vacate defendant's sentence and remand the case to the trial court to resentence defendant in conformity with Natale.

(continued)

(continued)

5

A-3212-03T4

December 1, 2005