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.
