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Tuesday, June 17, 2014

05/09/14 STATE V. PATTERSON A-2055-10T1

We hold that the drug-trafficking recidivist provision in N.J.S.A. 2C:43-6(f) cannot be the basis to impose a mandatory extended term for the offense of drug trafficking within 500 feet of a public housing facility under N.J.S.A. 2C:35-7.1. N.J.S.A. 2C:43-6(f) has never been amended to add the subsequently-enacted N.J.S.A. 2C:35-7.1 to its list of drug trafficking offenses for which an extended term is required. The prosecution may move to apply N.J.S.A. 2C:43-6(f) to the N.J.S.A. 2C:35-5 count, and the resulting minimum term of parole ineligibility will survive the merger of that count with the N.J.S.A. 2C:35-7.1 count. Because defendant attempted to explain away the cash in his pocket by using his post-arrest statement that "he was unemployed and that he won the money in Atlantic City gambling," the prosecutor's reference to his statement and his unemployment was not reversible error.