NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2055-10T1

STATE OF NEW JERSEY, APPROVED FOR PUBLICATION Plaintiff-Respondent, May 9, 2014 v. APPELLATE DIVISION KASHIF K. PATTERSON,

Defendant-Appellant. __________________________________

Submitted December 16, 2013 – Decided May 9, 2014

Before Judges Yannotti, Ashrafi and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 09-12-00629.

Joseph E. Krakora, Public Defender, attorney for appellant (John Douard, Assistant Deputy Public Defender, of counsel and on the brief).

John T. Lenahan, Salem County Prosecutor, attorney for respondent (Gregory G. Waterston, Assistant Prosecutor, on the brief).

The opinion of the court was delivered by

LEONE, J.S.C. (temporarily assigned).

Defendant Kashif K. Patterson appeals from his judgment of

conviction for drug offenses. We affirm his convictions despite

claims of prosecutorial misconduct. However, we hold that N.J.S.A. 2C:43-6(f) cannot be used to impose an 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. Thus, we remand for

the vacating of defendant's sentences and resentencing.

I.

On September 3, 2009, law enforcement officers executed a

search warrant at a residence. They surprised defendant and co-

defendants George E. Roane, III and Amir R. Cooke.1 The three

defendants were around a table in the living room. On the table

there was a cellophane bag containing ninety-two baggies filled

with crack cocaine. On the floor next to the table, in plain

sight of defendants, there was a cellophane bag containing

eighty baggies filled with crack, and a clear bag containing

crushed oxycodone pills. In the bedroom and kitchen, the police

found eight glass vials containing marijuana, hundreds of empty

vials, six oxycodone pills, and a digital scale.

Detective Patrick Vengenock found in defendant's pocket

$1,175 in cash, including thirty-seven $20 bills and thirteen

$10 bills. Roane had $192 in his pockets. In Cooke's pockets,

police found one vial of marijuana and one $10 baggie of crack.

1 The indictment names Cooke as "Cook".

2 A-2055-10T1 Defendant told Vengenock that the cocaine was not his.

Roane said he had just arrived. Cooke claimed all 172 baggies

were his and for his personal consumption.

The indictment charged all three defendants with six

counts. Count one charged third-degree possession of cocaine,

N.J.S.A. 2C:35-10(a)(1); count two charged third-degree

possession of cocaine with intent to distribute, N.J.S.A. 2C:35-

5(a)(1) and -5(b)(3); count three charged second-degree

possession of cocaine with intent to distribute within 500 feet

of a public housing facility, N.J.S.A. 2C:35-5(a)(1) and -7.1;

count four charged third-degree possession of oxycodone,

N.J.S.A. 2C:35-10(a)(1); count five charged fourth-degree

possession of less than an ounce of marijuana with intent to

distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(12); and count six

charged third-degree possession of marijuana with intent to

distribute within 500 feet of a public housing facility,

N.J.S.A. 2C:35-5(a) and -7.1.

Cooke pled guilty to count two, and defendant and Roane

went to trial together. The State called Detective Vengenock, a

searching officer, and a police drug expert. The expert

testified that the 172 baggies of crack were packaged and

intended for distribution at $10 per baggie. The expert also

3 A-2055-10T1 testified that narcotics distributors frequently have large sums

of cash on their person, predominantly in $10 and $20 bills.

Roane and his mother testified to support his claims that

he had just arrived. Defendant presented no evidence.

The jury convicted defendant of counts one, two, three, and

four, and acquitted him of counts five and six. The jury

convicted Roane of counts one and four, and acquitted him of the

remaining counts.

At defendant's October 8, 2010 sentencing, the court merged

count one into counts two and three. On count three, charging

possession of cocaine with intent to distribute within 500 feet

of a public housing facility, the court sentenced defendant to

twelve years in prison, with five years of parole ineligibility.

On counts two and four, the court sentenced him to prison terms

of four years, to run concurrent to count two and each other.

Defendant appeals, raising the following arguments:

POINT 1

THE PROSECUTOR COMMITTED MULTIPLE AND INTER- RELATED ACTS OF MISCONDUCT THAT DENIED MR. PATTERSON A FAIR TRIAL AND DUE PROCESS OF LAW.

A. THE INTRODUCTION OF EVIDENCE THAT MR. PATTERSON WAS UNEMPLOYED AND CARRIED $1,175 CREATED THE IMPERMISSIBLE INFERENCE THAT HE DEALT DRUGS FOR PROFIT.

4 A-2055-10T1 B. PROSECUTORIAL MISCONDUCT DURING SUMMATION UNCONSTITUTIONALLY SHIFTED THE BURDEN OF PROOF, AND IMPLICITLY COMMENTED ON MR. PATTERSON'S ELECTION NOT TO TESTIFY.

C. THE PROSECUTOR INDUCED VENGENOCK TO EXPRESS AN OPINION IMPUGNING COOKE'S HONESTY WHEN HE ADMITTED THE DRUGS WERE HIS, THEREBY IMPROPERLY ATTACKING MR. PATTERSON'S DEFENSE.

D. BECAUSE OF THE MULTIPLE AND INTERRELATED INSTANCES OF PROSECUTORIAL MISCONDUCT, MR. PATTERSON WAS DENIED HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL.

POINT II

THE COURT ERRED IN IMPOSING AN AGGREGATE SENTENCE OF TWELVE YEARS AS IT WAS ILLEGAL AND MANIFESTLY EXCESSIVE.

II.

In defendant's first Point, his first two arguments are

based on the following facts. Detective Vengenock testified

without objection that when he seized the $1,175 from defendant,

he asked defendant "if he was currently employed [and] where the

money came from. He indicated he was unemployed and that he won

the money in Atlantic City gambling."

Cross-examining the police drug expert, defendant's counsel

elicited that "[i]f a man owned a deli or some kind of family

business and he had with him $1,200, you wouldn't consider that

to be someone that was involved in drugs." In his closing,

5 A-2055-10T1 defendant's counsel referenced that testimony, and defendant's

statement that "the money I have on me is from gambling in

Atlantic City." Defendant's counsel elaborated: "he goes to

Atlantic City and he gambles. Now, that particular time he made

money. And he told that to them, it's from the money I made at

the casino."

In his closing, the prosecutor noted that defendant had in

his pocket $1,175, overwhelmingly in $10 and $20 bills. The

prosecutor highlighted the drug expert's testimony that

possessing such cash was consistent with drug trafficking. He

then argued:

Mr. Patterson had $1,175, it's a lot of money. He apparently doesn't have a job, which he admitted to the officers and apparently he went gambling. But we've never heard anything about where he went gambling from, no receipts, no card, no nothing and they could have produced some testimony about that but we don't have any. So we have to take the version that that's where all the money came from gambling. There's been zero corroboration of same. It's a lot of money for somebody that doesn't have a job who['s] found in the presence of 172 baggies of cocaine . . . .

After the closing, defendant objected to the prosecutor's

"no corroboration" argument and demanded a mistrial. The trial

court found that the prosecutor "was not arguing that Mr.

Patterson was required to testify or that he had any burden to

6 A-2055-10T1 produce corroborating evidence." However, to prevent any

misunderstanding, the court instructed the jury:

As you know, the State alleges that Mr. Patterson made a statement on the day he was arrested relating to the source of the money that he had, supposedly had in his pocket.

The Prosecutor commented on Mr. Patterson's alleged statement in his closing and he pointed out that it was not corroborated. You may consider all of the proofs, or the lack of proofs relating to the alleged statement in assessing whether it was made, and if made whether it was credible. I remind you, however, that Mr. Patterson has the absolute right to remain silent and he had no burden to produce any proofs at trial.

In addition, in his purported statement Mr. Patterson allegedly indicated that he was unemployed and that he had won the money in Atlantic City. I instruct you that you are not to consider his employment status for any purpose during your deliberations as it is not relevant to your deliberations as to whether the State has proven him guilty of the charges beyond a reasonable doubt.

The court then commenced its final charge, in which it

repeated this curative instruction. The court also warned that

defendant's alleged oral statement must be considered with

caution and only as the court had instructed, and reiterated the

court's opening instruction that any stricken testimony "is not

evidence" and "must be disregarded." The court also reiterated

its preliminary and opening instructions that the State had the

7 A-2055-10T1 burden of proof, that the burden never shifts to defendant, and

that defendant had no obligation to testify or offer any proof.

After the verdict, defendant made a motion for a new trial.

The trial court found that the introduction of defendant's

statement explaining the money was from gambling gave the State

a right to challenge its credibility, and that the curative

instructions were sufficient both to prevent any inference that

defendant was required to produce corroborating evidence, and to

prevent consideration of his employment status.

A.

Defendant first challenges the prosecutor's introduction of

evidence regarding defendant's possession of $1,175. This is

more properly viewed as a challenge to the trial court's

admission of evidence. "Considerable latitude is afforded a

trial court in determining whether to admit evidence, and that

determination will be reversed only if it constitutes an abuse

of discretion." State v. Feaster,

(1998).

"However, if the party appealing did not make its objection to

admission known to the trial court, the reviewing court will

review for plain error, only reversing if the error is 'clearly

capable of producing an unjust result.'" State v. Rose,

(2011) (quoting R. 2:10-2).

8 A-2055-10T1 Here, defendant did not object to either the admission of

the $1,175 found in his pocket, or the expert testimony that

possession of that amount of cash in such denominations was

indicative of drug dealing. Nor can he show plain error.

Defendant now relies on State v. Terrell,

(App. Div.), certif. denied,

(2003), but that case

did "not hold that evidence of the money found on defendant's

person should have been kept from the jury." Id. at 248.

Moreover, "[a]dmission of expert testimony on drug possession

and distribution techniques is permissible when reasonably

required to assist jurors in understanding subjects that are

beyond the ken of an average layperson." State v. Nesbitt,

(2006); see State v. Sowell,

(2013) (noting "we do not expect ordinary jurors to understand

the difference between drugs possessed for distribution as

opposed to personal use").

Defendant also did not object to the admission of his

statement to Detective Vengenock.2 To the contrary, as

2 After fifteen other questions Roane's defense counsel stated that the prosecutor "got into employment status which I don't believe is permissible." When the trial court responded, "You didn't raise it, you waived it," Roane's counsel replied: "No, I don't think you understand. My reason for bringing it up, is I don't want [it] to happen when it comes to my [client]." The court then instructed the prosecutor to approach the bench first if he intended "to ask about Mr. Roane's employment status." It (continued)

9 A-2055-10T1 defendant's counsel later admitted, he was using defendant's

statement as a basis for his defense. Specifically, counsel's

closing argument relied on that statement to show that defendant

got the $1,175 from gambling in Atlantic City rather than by

selling the drugs to Cooke or others. "[T]rial errors that were

induced, encouraged or acquiesced in or consented to by defense

counsel ordinarily are not a basis for reversal on appeal."

State v. A.R.,

(2013) (quotation marks

omitted).

B.

Defendant's remaining arguments in his first Point claim

prosecutorial misconduct in summation. We must hew to our

standard of review. "Prosecutors are afforded considerable

leeway in closing arguments as long as their comments are

reasonably related to the scope of the evidence presented."

State v. R.B.,

(2005). "It is not improper

for the prosecution to suggest that the defense's presentation

was imbalanced and incomplete." State v. Timmendequas,

(1999), cert. denied,

,

,

(2001). "'[T]o justify reversal, the prosecutor's

(continued) is apparent that Roane's counsel was speaking, but the transcriber mistakenly inserted the name of defendant's counsel. In any event, this was not a "contemporaneous objection." See State v. Ingram,

(2008).

10 A-2055-10T1 conduct must have been "clearly and unmistakably improper,"'"

and "'so egregious as to deprive defendant of a fair trial.'"

State v. Wakefield,

(2007), cert. denied,

,

,

(2008). We

must consider "'whether defense counsel made a timely and proper

objection, whether the remark was withdrawn promptly, and

whether the court ordered the remarks stricken from the record

and instructed the jury to disregard them.'" Id. at 438.

After the prosecutor's summation, defendant's counsel

objected to the prosecutor's "no corroboration" argument, but

not to the references to defendant's statement that he was

unemployed and obtained the $1,175 by gambling.3 Both defense

counsel confirmed that there had been no objection to the

statement's admission. "[D]efendant's failure to object to this

[evidence of unemployment] or the prosecutor's summation on this

issue indicates that he did not, in the context of the proofs,

deem them prejudicial or improper." State v. Farr,

(App. Div. 1982); see

;

.

3 Roane's defense counsel mentioned that the prosecutor referenced defendant's statement that he was unemployed. The trial court responded, "You can't make objections on behalf of another [lawyer's] client. He's not your client." Again, though Roane's counsel was speaking, the transcriber mistakenly switched the names of the attorneys for defendant and Roane.

11 A-2055-10T1 The next day, defendant's counsel "after further

consideration" asked the court to give a curative instruction

about defendant's unemployment, and confirmed that the trial

court's proposed instruction was acceptable. "[T]hus, defendant

can prevail on [this claim] only by demonstrating 'plain

error.'" State v. Angoy,

(App. Div.),

certif. denied,

(2000).

"Defendant's belated effort to raise that issue on motion

for a new trial does not entitle him to avoid the plain error

standard of review." State v. Noble,

, 595

n.4 (App. Div.), certif. denied,

(2008). Moreover,

"[w]hether testimony or a comment by counsel is prejudicial and

whether a prejudicial remark can be neutralized through a

curative instruction or undermines the fairness of a trial are

matters 'peculiarly within the competence of the trial judge.'"

State v. Yough,

(2011). Accordingly, "'[a]n

appellate court will not disturb a trial court's ruling on a

motion for a mistrial, absent an abuse of discretion that

results in a manifest injustice.'" State v. Jackson,

(2012).

Defendant has failed to make such a showing, let alone show

plain error. As the trial court recognized, the New Jersey

courts have long held that it is "improper and injurious" for a

12 A-2055-10T1 prosecutor to introduce evidence for the sole purpose of arguing

"that defendant had no apparent means of income and hence was

likely to commit a crime for dollar gain." State v. Mathis,

(1966).

However, New Jersey courts have also recognized that, when

a defendant argues that he lacked the intent to commit a crime

because he has income, a prosecutor's introduction of evidence

as to the defendant's "employment status and financial

obligations and his comments during summation with respect

thereto [are] not improper."

. In Farr, we held the prosecution could comment upon the

defendant's unemployment because he testified, "'Why in God's

earth would I rob a store? I had two hundred dollars in my

pocket.'"

In State v. Downey,

(App. Div. 1989), certif. denied,

(1990), we held

that the State could introduce evidence of the defendant's

financial situation to rebut her suggestion that she "would not

have murdered her husband for financial gain because she had

already anticipated a substantial recovery on her civil

lawsuit." See also State v. Conyers,

(1971)

(distinguishing Mathis where "defendant himself injected" a

topic into the case).

13 A-2055-10T1 Here, defendant proffered to authorities that he was

unemployed but had won the $1,175 gambling in Atlantic City.

Defendant's counsel then used that statement in his closing

argument as a key defense and as rebuttal to the drug

trafficking expert's testimony. Defendant could not expect his

statement to be immune from prosecutorial comment in closing.

"A prosecutor is permitted to respond to an argument raised by

the defense so long as it does not constitute a foray beyond the

evidence adduced at trial." State v. Munoz,

(App. Div.), certif. denied,

(2001); see

State v. McGuire,

(App. Div.) ("A

prosecutor's otherwise prejudicial comments may be deemed

harmless if made in response to defense arguments."), certif.

denied,

(2011). Under Farr and Downey, the

prosecutor could challenge the credibility of defendant's

position that he had a source of income other than drug dealing.

Therefore, "the prosecutor's references to defendant's lack of

employment at the time of the offense" were not improper because

they "were not intended to be impermissibly suggestive of

indigency as a motive for crime." See State v. Zola,

(1988), cert. denied,

,

,

(1989).4

4 Other than the factual rendition by Detective Vengecock of the (continued)

14 A-2055-10T1 In any event, the trial court's careful curative

instruction removed any possibility of prejudice from the

mention of defendant's unemployment. The court instructed the

jurors that they were "not to consider his employment status for

any purpose during [their] deliberations." "We presume the jury

followed the court's instructions." State v. Smith,

(2012), cert. denied, ___ U.S. ___,

,

(2013). The absence of prejudice is evidenced

by the jury's verdicts, which acquitted defendant of two charges

of possession with intent to distribute. See State v.

Krivacska,

(App. Div.), certif. denied,

(2001), cert. denied,

,

,

(2002). Because "the trial court

promptly and effectively dealt with those comments via a

curative instruction,"

, "the

references to defendant's impecuniosity played no part in the

jury's determination of defendant's guilt." State v. Robinson,

(App. Div. 1976), certif. denied,

(1977).

(continued) events of the search, the prosecution made no reference to defendant's unemployment until after defendant made his statement a centerpiece of his defense.

15 A-2055-10T1 Defendant's reliance on Terrell is misplaced. There, a

prosecutor stated as the "first and primary foremost" reason why

the jury should find that Terrell was dealing drugs was that he

was unemployed yet had $965 in his pockets.

. However, Terrell did not allege as a

defense that he had other sources of income, which permits

prosecutorial response under Downey and Farr.5 Further, Terrell

objected to the prosecutor's question eliciting the evidence of

his unemployment, and was not required to show plain error.

. Finally, the trial court denied Terrell's

objection, and gave no curative or limiting instruction. We

expressly reversed "[b]ecause of unremediated prejudice."

. Therefore, we find Terrell is distinguishable.

C.

Defendant next challenges the prosecutor's "no-

corroboration" argument, arguing that it violated his right to

remain silent and shifted the burden of proof. Generally, "a

defendant has no obligation to establish his innocence," either

by "assuming the stand to testify" or by "proffering affirmative

evidence on his own behalf." State v. Jones,

Terrell gave no indication that it sought to contravene Downey or Farr by its statement that "[t]he introduction of evidence regarding whether or not a defendant has a regular source of income is, when a collateral issue, prohibited in any form."

.

16 A-2055-10T1 376, 382 (App. Div. 2003). "A defendant need not call any

witnesses, choosing instead to rely on the presumption of

innocence." State v. Hill,

(2009). However,

"not all summation comment on a defendant's failure to produce a

witness would produce the impermissible effect of lessening the

State's burden of proof,"

at 569 n.9, and "[e]ven a direct

comment on a defendant's failure to testify may be cured by a

judge's timely and effective action," State v. Scherzer,

(App. Div.), certif. denied,

(1997).

The prosecutor here should not have argued that the defense

"could have produced some testimony about" where defendant got

the $1,175. Nonetheless, the trial court wisely obviated any

prejudice from that comment and the remaining remarks regarding

the absence of corroborative evidence. The court sustained

defendant's objection and twice instructed the jury that

defendant "has the absolute right to remain silent and he had no

burden to produce any proofs at trial."

Therefore, "we are satisfied that any possible infringement

on defendants' right to silence did not rise to the level of

reversible error because of the effective action of the trial

judge in re-establishing in the minds of the jurors the

importance of that right." Id. at 442. The curative

17 A-2055-10T1 instruction was also sufficient to remove any implication "that

the defense had some burden of proof." State v. Jenkins,

(App. Div.), certif. denied,

(2002). Considering that defendant was found with 92 baggies of

crack on the table in front of him and 80 more crack baggies and

crushed oxycodone pills at his feet, the evidence of his

possession of the drugs with intent to distribute was very

strong. The prosecutor's improper comments were harmless error,

and the trial court quickly corrected the error.

III.

When Detective Vengenock testified that Cooke claimed "the

drugs in the living room were his and [were] for [his] personal

use," the prosecutor improperly asked Vengenock if he believed

Cooke. Vengenock replied, "No, I didn't," but the answer was

not heard by the court or counsel, and may not have been heard

by the jury.

In any event, the trial court sustained Roane's objection,

and told the prosecutor that it was improper to ask a police

officer his assessment of another witness's credibility, citing

State v. Frisby,

(2002). The court denied Roane's

mistrial request, instead instructing the jury that:

I'm striking the last question to [Detective] Vengenock. No witness can testify as to the believability or the credibility of another person. That's your

18 A-2055-10T1 job. You're here to, — as I told you in your opening instructions [—] assess the credibility of witnesses, assess the credibility of evidence and weigh it. So I would ask you to disregard the question. Whatever a witness'[s] opinion is, with regard to those issues is irrelevant and should never be considered by you.

Defendant ignores this curative instruction, as well as the

court's final instruction that the jurors "alone are the sole

and exclusive judges of the evidence [and] of the credibility of

the witnesses." The court's instructions were sufficient to

remove any prejudice from the single question and the brief,

possibly unheard answer. See

.

By contrast, there was no curative instruction in Frisby.

In Frisby, the testimony of two separate police officers that

another witness's version of the events was "more credible" than

the defendant's version, in a trial that was a "pitched

credibility battle" between that witness and defendant.

. Here, the detective's comment

was "considerably more limited in scope," State v. R.B.,

, 333 n.5 (2005), "did not express an opinion as to

defendant's guilt," State v. Kemp,

(2008), and

was not "'so egregious that it deprived defendant of a fair

trial,'" State v. Bunch,

(2004). Considering

"the substantial evidence of [the] defendant's guilt" and "the

trial court's instruction to the jury that it must determine the

19 A-2055-10T1 witnesses' credibility," we find no reversible error in the

trial.

IV.

At sentencing, the prosecutor supplied a certified judgment

of conviction showing that defendant had been previously

convicted of distributing a controlled dangerous substance in

2006. The prosecutor applied under N.J.S.A. 2C:43-6(f) for a

mandatory extended term on count three, defendant's conviction

for second-degree possession of cocaine with intent to

distribute "within 500 feet of the real property comprising a

public housing facility, a public park, or a public building."

N.J.S.A. 2C:35-7.1. Defendant now challenges the imposition of

a mandatory extended term on that count, arguing that this

public facility offense is not eligible for a mandatory extended

term under N.J.S.A. 2C:43-6(f).

Although defendant agreed it was appropriate to grant the

prosecutor's motion at sentencing, "'[t]he parties cannot

negotiate an illegal sentence,' and a defendant may not

acquiesce in the imposition of an illegal sentence." State v.

Crawford,

(App. Div. 2005) (citation

omitted). Because this is an illegal sentence, we consider the

issue in the interests of justice. R. 2:10-2; see R. 3:21-

10(b)(5).

20 A-2055-10T1 To resolve this issue, we must interpret N.J.S.A. 2C:43-

6(f) (Subsection 6(f)). "Because statutory interpretation

involves the examination of legal issues," we apply "a de novo

standard of review." State ex rel. K.O.,

(2014)

(citation omitted). "In statutory interpretation, a court's

role 'is to determine and effectuate the Legislature's intent.'"

"The first step toward that end is to consider the plain

language of the statute."

Subsection 6(f) enhances the penalty for specified

subsequent crimes by a person "who has been previously convicted

of manufacturing, distributing, dispensing or possessing with

intent to distribute a controlled dangerous substance."

N.J.S.A. 2C:43-6(f). Such a person "shall upon application of

the prosecuting attorney be sentenced by the court to an

extended term" when that person is convicted

of manufacturing, distributing, dispensing or possessing with intent to distribute any dangerous substance or controlled substance analog under N.J.S. 2C:35-5, of maintaining or operating a controlled dangerous substance production facility under N.J.S. 2C:35-4, of employing a juvenile in a drug distribution scheme under N.J.S. 2C:35-6, leader of a narcotics trafficking network under N.J.S. 2C:35-3, or of distributing, dispensing or possessing with intent to distribute on or near school property or buses under section 1 of P.L.1987, c.101 ([N.J.S.A.] 2C:35-7)[.]

[N.J.S.A. 2C:43-6(f).]

21 A-2055-10T1 In this list of offenses eligible for a mandatory extended

term, Subsection 6(f) does not list the public facility offense,

N.J.S.A. 2C:35-7.1. Instead, Subsection 6(f) clearly and

unambiguously lists only N.J.S.A. 2C:35-3, -4, -5, -6, and -7.

"[W]hen a statute's language is clear and unambiguous, we need

delve no deeper than the act's literal terms to divine the

Legislature's intent." State v. Smith,

(2009)

(quotation marks omitted). "If the language is 'clear on its

face,' courts should 'enforce [the statute] according to its

terms.'" Perrelli v. Pastorelle,

(2011).

We note that Subsection 6(f)'s non-inclusion of N.J.S.A.

2C:35-7.1 may simply be a matter of timing. Subsection 6(f) was

enacted as part of the Comprehensive Drug Reform Act of 1987

(the Act), L. 1987, c. 106, § 12. The public facility offense

in N.J.S.A. 2C:35-7.1 was enacted in 1997. L. 1997, c. 327, §

1. The Legislature has never amended Subsection 6(f) to add the

public facility offense to the list of offenses eligible for a

mandatory extended term, even though the Legislature has twice

amended N.J.S.A. 2C:43-6 since 1997. See State v. P.L.,

(App. Div. 2004). In the absence of

legislative action, "[w]e cannot rewrite a criminal statute to

increase sentencing penalties that do not appear clearly on the

face of that statute." State v. Gelman,

, 487

22 A-2055-10T1 (2008). Thus, we hold that the public facility offense cannot

be subject to a mandatory extended term under Subsection 6(f) as

currently written.

We have considered that Subsection 6(f) applies to

recidivist drug traffickers who violate N.J.S.A. 2C:35-5, and

that the public facility statute requires that a defendant must

violate N.J.S.A. 2C:35-5.6 However, Subsection 6(f) specifically

lists N.J.S.A. 2C:35-7, even though that offense similarly

requires that a defendant must violate N.J.S.A. 2C:35-5.7 If

6 N.J.S.A. 2C:35-7.1(a) states:

Any person who violates subsection a. of N.J.S. 2C:35-5 by distributing, dispensing or possessing with intent to distribute a controlled dangerous substance or controlled substance analog while in, on or within 500 feet of the real property comprising a public housing facility, a public park, or a public building is guilty of a crime of the second degree . . . . 7 N.J.S.A. 2C:35-7(a) states:

Any person who violates subsection a. of N.J.S. 2C:35-5 by distributing, dispensing or possessing with intent to distribute a controlled dangerous substance or controlled substance analog while on any school property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of such school property or a school bus, or while on any school bus, is guilty of a crime of the third degree . . . .

23 A-2055-10T1 that was sufficient to make N.J.S.A. 2C:35-7 subject to

Subsection 6(f), it would render superfluous the Legislature's

listing of N.J.S.A. 2C:35-7 in Subsection 6(f).8 We decline to

interpret Subsection 6(f) in a manner that would render "words

in [the] statute surplusage." Shelton v. Restaurant.com, Inc.,

(2013).

Instead, we read the listing of N.J.S.A. 2C:35-7 in

Subsection 6(f) as proof that the Legislature intended to

specify those offenses subject to the mandatory extended term,

rather than leaving to the courts to draw such inferences.

The legislative history of these enactments is consistent

with this interpretation. The Assembly Judiciary Committee

provided the Official Commentary to the Comprehensive Drug

Reform Act of 1986 (Laws 1987, Chapter 106), reprinted in 9

Crim. Just. Q. 149 (Fall 1987) ("Official Commentary"). The

Official Commentary highlighted that the Act provided for

"mandatory extended terms and periods of parole ineligibility

for certain repeat drug distributors." Id. at 150 (emphasis

added). The Official Commentary's discussion of N.J.S.A. 2C:43-

6 states that "this section is designed to incapacitate drug

8 Subsection 6(f) similarly lists N.J.S.A. 2C:35-6, even though it requires a defendant to employ a juvenile to violate "N.J.S. 2C:35-4 or subsection a. of N.J.S. 2C:35-5," both of which are listed in Subsection 6(f).

24 A-2055-10T1 distributors who are repeat offenders" and who are convicted of

N.J.S.A. 2C:35-3, -4, -5, -6, and -7. Id. at 169. In the

legislative history of N.J.S.A. 2C:35-7.1, there is no reference

to Subsection 6(f).

Even "if there were ambiguity in the statutory provisions

that we have analyzed, we would be guided by the doctrine of

lenity because we are construing a criminal statute." State v.

Rangel,

(2013). "That doctrine 'holds that

when interpreting a criminal statute, ambiguities that cannot be

resolved by either the statute's text or extrinsic aids must be

resolved in favor of the defendant.'"

Thus, even if

Subsection 6(f)'s text was ambiguous, the rule of lenity would

require us to interpret Subsection 6(f) as inapplicable to the

public facility offense, given the absence of any contrary

legislative history. See State v. Regis,

(2011) ("[T]he rule of lenity derives from the principle that

'[n]o one shall be punished for a crime unless both that crime

and its punishment are [not] clearly set forth in positive

law.'").

Accordingly, we remand to the trial court with instructions

to vacate defendant's sentences and resentence without imposing

a mandatory extended term under N.J.S.A. 2C:43-6(f) on his

conviction under N.J.S.A. 2C:35-7.1.

25 A-2055-10T1 We note that Subsection 6(f) does apply to defendant's

conviction under N.J.S.A. 2C:35-5, and so the prosecution may

make a motion under Subsection 6(f) for an extended term

regarding count two in accordance with Subsection 6(f)'s terms.

We also note that we have held that a "third-degree Section

5 conviction merges into the Section 7.1 conviction, and that

defendant must be sentenced as a second-degree offender

consistent with the Section 7.1 conviction." State v. Gregory,

(App. Div. 2001); see State v.

Dillihay,

(1992) (requiring merger of

convictions under N.J.S.A. 2C:35-5 and N.J.S.A. 2C:35-7); State

v. Gonzalez,

(1991) (same). Therefore, count

two must be merged with count three. If a minimum term of

parole ineligibility is imposed on count two under Subsection

6(f), that term survives the merger with count three. See

; State v. Parker,

(App. Div. 2000).

Convictions affirmed; remanded for resentencing.

26 A-2055-10T1