STATE OF NEW JERSEY v. SHONDALE LITMER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5381-03T45381-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHONDALE LITMER, a/k/a

SHONDALE LATTIMORE, a/k/a

SHONDALE LATIMER,

Defendant-Appellant.

____________________________

 

Submitted October 3, 2005 - Decided

Before Judges Lefelt and Seltzer.

On appeal from a Judgment of Conviction

of the Superior Court of New Jersey,

Law Division, Criminal Part, Monmouth

County, 02-01-0071.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Mark Zavotsky,

Designated Counsel, on the brief).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Laura A. Sinins, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

On September 18, 2001, defendant was indicted in Monmouth County, Indictment No. 02-01-0071, charging him with: Count I, possession of a controlled dangerous substance with intent to distribute (a crime of the third degree) contrary to N.J.S.A. 2C:35-5b(11); Count II, possession of a controlled dangerous substance with intent to distribute within 1,000 feet of school property (a crime of the third degree) in violation of N.J.S.A. 2C:35-7; and Count III, possession of a controlled dangerous substance with intent to distribute within 500 feet of public housing (a crime of the second degree) in violation of N.J.S.A. 2C:35-7.1.

After a two-day jury trial, defendant was found guilty of all counts and was sentenced on July 9, 2003. Count I was merged into Count II and defendant was sentenced to a five-year custodial term with a three-year parole disqualifier. Defendant also received a five-year custodial term on Count III which was run concurrently with the sentence imposed on Count II. Appropriate fines and penalties were imposed. On appeal, from his conviction, defendant asserts:

POINT I

THE MAP SUBMITTED TO THE JURY ON THE CONVICTION FOR INTENT TO DISTRIBUTE WITHIN A SCHOOL ZONE AND PUBLIC HOUSING FACILITY WAS NEVER PROPERLY ADMITTED INTO EVIDENCE REQUIRING THAT THE CHARGES BE VACATED AND THE CONVICTION BE REMANDED FOR RE-SENTENCING.

POINT II

THE PROSECUTOR'S FAILURE TO REVISIT THE PLEA AGREEMENT BEFORE TRIAL AS AGREED TO WAS TANTAMOUNT TO AN ARBITRARY AND CAPRICIOUS ABUSE OF DISCRETION RESULTING IN AN EXCESSIVE PAROLE DISQUALIFIER AS TO THE DEFENDANT'S SENTENCE.

We have carefully considered the record and submissions and conclude the arguments raised by the defendant are without sufficient merit to warrant discussion in a written opinion.

R. 2:11-3(e)(2). We add, however, the following brief comments.

During the trial, the State introduced maps demonstrating the boundaries of the school and public housing facility as well as defendant's location at the time of his arrest. Those maps were appropriately admitted into evidence pursuant to N.J.S.A. 2C:35-7 (as to the school) and N.J.S.A. 2C:35-7.1(e) (as to the public housing facility). The State also produced for the jury, although it did not introduce into evidence, a map that combined the two smaller maps. There was no objection when that larger, composite map was shown to the jury. Since the jury had before it appropriately authenticated maps, the introduction of which is specifically authorized by statute, there can be no complaint that the jury was also shown, without objection, a composite.

Defendant also complains that, while the State had agreed to continue plea negotiations after the plea cut-off date, it did not do so. The plea cut-off form executed by defendant defines the receipt of defendant's expert report as a change of circumstances. The import of that definition is to allow a negotiated plea after a trial date has been scheduled. R. 3:9-3(g). Nevertheless, there is nothing in this record to suggest, as defendant claims, that the parties had agreed to continue negotiations or that the State would keep open its original offer of a non-custodial sentence. In any event, the record does support the State's claim that it did extend an offer to defendant after the receipt of the expert report and defendant refused it. Defendant cannot object that the State did not provide the plea arrangement that he desired.

 
Affirmed.

Defendant was identified as Shondale Litmer, a/k/a Shondale Lattimore in the Judgment of Conviction filed on July 25, 2003 and as Shondale Latimer in the Indictment filed on September 18, 2001.

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4

A-5381-03T4

November 1, 2005