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N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); third-degree possession of cocaine with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count three); third-degree distribution of cocaine, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count four); and third-degree distribution of cocaine within a school zone, N.J.S.A. 2C:35-7 (count five). The jury found defendant guilty on all counts."> Original Wordprocessor Version

This case can also be found at *CITE_PENDING*. (NOTE: The status of this decision is unpublished.)
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5375-04T45375-04T4 STATE OF NEW JERSEY, Plaintiff-Respondent, v. RUBEN SANABRIA, Defendant-Appellant. _____________________________________________________________

Submitted June 1, 2006 - Decided June 30, 2006 Before Judges Wefing and Graves. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Ind. No. 0668-04-2004. Yvonne Smith Segars, Public Defender, attorney for appellant (Hegge & Confusione, attorneys; Michael Confusione, Designated Counsel, of counsel and on the brief). Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Kristen Brewer, Assistant Prosecutor, on the brief). PER CURIAM
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In a five-count indictment (Hudson County indictment number 0668-04-2004), defendant Ruben Sanabria was charged with third-degree possession of cocaine, N.J.S.A. 2C:35-7 (count three); third-degree distribution of cocaine, N.J.S.A. 2C:35-7 (count five). The jury found defendant guilty on all counts. At sentencing, the court merged counts one and two into count three, and count four was merged into count five. Because he was a repeat drug offender, defendant was subject to a mandatory extended term pursuant to 33 N.J. 580, 589 (1960). The trial court was in the best position to gauge the impact of the inappropriate remark, State v. Winter, 96 N.J. 640, 647 (1984), and we are satisfied that the matter was handled properly. The comment by Officer DeStefano during cross-examination had no realistic potential for affecting the jury's verdict. Defendant also objects to the admission of a series of photographs of the building where he was arrested. The photographs depicted the building in "broad daylight," but the incident took place at night. Consequently, defendant argues that the photographs were improper, misleading and unfairly prejudicial. The State, on the other hand, argues that there could be no misunderstanding on the part of the jury because "the jury knew that the photographs were not taken at the same time of day as the incident, but were merely used to illustrate the location." We agree. Defense counsel cross-examined Detective Wilde extensively on what he was and was not able to observe from his position in front of 191 Academy Street. Both the detective's testimony and the respective summations of defense counsel and the prosecution made clear to the jury that it was dark out at the time of the surveillance. We are satisfied that any possible error was harmless and clearly not "capable of producing an unjust result." R. 2:10-2; see also State v. Wilson, 135 N.J. 4, 20-21 (1994). Defendant now argues, for the first time, that there was insufficient evidence to sustain the convictions on counts two, three, four, and five, because "the State's proofs were insufficient to identify defendant as the seller who had sold the drugs to this buyer." This claim is procedurally barred because defendant failed to move for a new trial based on that ground as required by R. 2:10-1. See State v. DiFerdinando, 345 N.J. Super. 382, 399 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002). Nevertheless, even if we were to consider the issue, defendant's argument is without merit. There was strong evidence to support the finding by the jury that defendant sold cocaine to Vaxmonsky and that he possessed more cocaine with the intent to distribute it. Based on our review of the record, we are satisfied that there has been no "manifest denial of justice." R. 3:20-1. Defendant's claim that the jury charge did not adequately "relate the statutory language of the drug offenses charged to the facts at issue," also lacks merit. As the Court has repeatedly noted, portions of a charge alleged to be erroneous cannot be dealt with in isolation, "but the charge should be examined as a whole to determine its overall
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effect." State v. Wilbely, 63 N.J. 420, 422 (1973) (citing State v. Council, 49 N.J. 341 (1967)). After reading the jury instructions in their entirety, we are satisfied that the instructions fairly reflected the applicable law and were not in any way prejudicial to defendant. Defendant's final arguments pertain to his sentence. The sentencing court incorrectly imposed two six-year extended term sentences, one for possession of cocaine with intent to distribute in a school zone (count three), and one for distribution of cocaine in a school zone (count five). The State concedes that a resentencing remand is necessary, as no more than one extended term sentence may be imposed pursuant to 154 N.J. 344, 360-61 (1998). We affirm the six-year extended term sentence imposed on count three because it was less than the middle term allowed under the extended term range of five to ten years. 114 N.J. 169, 172 (1989). Because a violation of probation demonstrates a defendant's "inability to live lawfully and to respond positively to probation," the Court has declared "it is more consistent with the Code's sentencing scheme . . . to consider the effect of the probation violation on the relevant mitigating, but not the aggravating, factors." Id. at 177. The finding of aggravating factors 3, 6, and 9 on each violation of probation was not appropriate because the court could only consider the aggravating factors "that existed at the time of the initial sentencing." Id. at 176. Defendant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:113(e)(2).

Defendant's conviction is affirmed, and the matter is remanded for resentencing. (continued) (continued) 11 A-5375-04T4 June 30, 2006 0x01 graphic

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