NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Based on a single purchase of crack cocaine made by an undercover officer, the grand jury for Union County charged defendant Francisco N. Diaz with one count of third-degree distribution of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5a(1), (b)(3), and one count of third-degree distribution of CDS in a school zone, N.J.S.A. 2C:35-7. As authorized by N.J.S.A. 2C:1-8d(2), the judge submitted an included offense to the jury on both counts — conspiracy to commit distribution. The jurors found defendant not guilty on both counts of distribution but guilty on both counts of conspiring to distribute. Following the verdict, the judge accepted defendant's guilty plea to a violation of the conditions of a probationary sentence imposed in June 2008 for third-degree possession of a CDS. Between trial and sentencing, defendant pled guilty to violating the conditions of a sentence of probation imposed on a prior conviction for possession of a CDS.

The judge did not merge the convictions for conspiring to distribute cocaine, and he imposed sentence on both counts as follows: a four-year term with a two-year period of parole ineligibility for conspiring to distribute; and a concurrent discretionary extended seven-year term pursuant to N.J.S.A. 2C:44-3a with a forty-two-month period of parole ineligibility for conspiring to distribute in a school zone. On defendant's guilty plea to violating probation on his prior conviction for possession, the judge resentenced defendant to a three-year term of imprisonment.

The State's theory of the case was that defendant made the sales with the assistance of an unidentified man. At about 11:00 p.m. on April 1, 2010, a detective of the Plainfield Police Department was working undercover to detect drug transactions. He was dressed and groomed to appear as if he were a person likely interested in purchasing a CDS and was working with other officers in the area to back him up.

As the detective traveled in an area known for narcotics trafficking, he made eye contact with a man standing idly on the sidewalk. Although they did not know one another, the stranger motioned, inviting the detective to pull over.

When the detective stopped, the stranger approached and asked him what he was looking for. The detective said he wanted "two twenties, meaning $40 worth of crack cocaine." In response, the stranger directed the detective to drive to another intersection and promised to meet him there. On reaching the appointed spot, the detective saw the stranger and stopped again. Responding, the stranger came to the detective's car, pointed to a nearby green Subaru and told the detective he would call "his man Frankie."

The detective saw defendant, who was the man in the car, answer and speak on the phone as it illuminated the Subaru's interior. When the call ended the detective gave the stranger $40. He then saw the stranger go to the Subaru, hand defendant money and receive one or more items from him. The stranger then returned and gave the officer a bag that contained crack cocaine, which the detective took. After arguing with the stranger about the quantity of cocaine, the detective left.

Officers working with the detective observed different segments of the stranger's interactions with the detective and defendant. One of them followed the Subaru and another stopped defendant and examined his credentials. This incident was part of an ongoing sweep to identify persons dealing drugs on the streets of Plainfield. Accordingly, in order to prevent the dealers from discovering the officers' mode of operation, defendant was not arrested at that time.

In addition to the foregoing facts, the State's evidence was adequate to permit the jury to find, beyond a reasonable doubt, that the substance given to the stranger and sold to the detective was crack cocaine and that the distribution took place in a school zone.

The State asked the judge to submit a charge of conspiracy to the jury as an offense included in the crimes charged in the indictment — distribution of CDS and distribution of CDS in a school zone. N.J.S.A. 2C:1-8d(2); State v. Branch, 155 N.J. 317, 324 (1998); State v. LeFurge, 101 N.J. 404, 411 (1986). After a careful discussion of the statutory and decisional law and upon finding that the State's evidence provided a rational basis for a verdict acquitting defendant of distribution but convicting him of conspiring to distribute cocaine, N.J.S.A. 2C:1-8e, the judge granted that request.

During a conference on the record about the jury charge and verdict sheet, defense counsel raised an objection. He explained that he was not objecting "to [conspiracy] being charged." His objection was to giving the jury "a separate jury interrogatory" on each charge. Acknowledging that the State was "free to argue different theories of liability" and that defendant had no basis to "allege there's a surprise," defense counsel contended that by listing the included offense under each charge, the judge was unfairly giving the jury two opportunities to convict on each count and requiring defendant, who was indicted on two counts, to answer on four.

Defense counsel asked if the judge would instruct the jury once or twice on conspiracy, and the judge explained that for the sake of clarity he would instruct the jury on conspiracy at the end of each charge on the elements of both distribution counts. Defense counsel said that was "okay" and that he understood. In summation, the prosecutor told the jury the judge would charge "a lesser included offense of conspiracy to commit distribution of CDS" and "a lesser included ... conspiracy to commit distribution of CDS within" a school zone. In discussing the evidence supporting a conviction for distribution, the prosecutor said: "So, it's not just conspiracy, ladies and gentlemen, it's actual distribution." Those remarks drew no objection from the defense.

After instructing the jury on the elements of distribution, the judge advised that, in accordance with law, he would also instruct them on "possible lesser included offenses" not contained in the indictment. He further explained that this did not mean that the judge had "any opinion one way or another about whether the defendant committed these or any offenses." Before directing them on conspiracy to distribute, he referred to conspiracy as a "lesser included charge of" distribution. Similarly, prior to instructing the jury on conspiracy to distribute is a school zone, the judge referred to it as a "lesser included charge of" distribution and noted that he had already instructed them on the "law [of] lesser included offenses."

Upon completing the final jury charge, the judge asked the attorneys, at sidebar, if there was "anything that need[ed] to be modified[.]" Defense counsel said, "No, Judge" and went on to say, "I'd just reiterate that I think, on a 38-page charge, 8 pages was devoted to charging the jury twice on conspiracy." "It was the exact same charge twice." After noting two typographical errors he had detected while delivering the instructions that he would correct, the judge turned to review the verdict sheet with the jury.

Defendant presents two issues on appeal:

We have considered the arguments presented in support of defendant's first point, which focuses entirely on appellate counsel's perception that the judge's and the prosecutor's use of the phrase "lesser included" inaccurately characterized the relationship between conspiracy and the substantive crimes and created in the jurors a misimpression that conspiracy is a less serious crime than distribution or distribution in a school zone. As defendant acknowledges, these objections were not raised at the time. Consequently, the alleged errors are subject to review for plain error — error clearly capable of producing an unjust result and warranting correction in the interests of justice. R. 2:10-2.

Defendant identifies several ways in which he could have been prejudiced by the suggestion that conspiracy is less serious than the crime that is its object. Specifically, defendant argues that the references to "lesser included" and "just conspiracy" taken together amounted to instructional error capable of leading to a compromise verdict on conspiracy as a middle ground between convictions for distribution and distribution in a school zone and acquittals of distribution; and he submits that these comments had the capacity to "dilute the jury's sense of responsibility" by suggesting that its verdict had less serious consequences. We have considered the arguments in light of the authorities cited in support — State v. Grey, 147 N.J. 4, 11-18 (1996) (directing courts to follow United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L. Ed. 2d 461 (1984) and Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L. Ed. 356 (1932) and thereby accept, without speculation, inconsistent verdicts that may have resulted from "jury lenity, compromise, or mistake not adversely affecting the defendant"; concluding, however, that the rule should not be applied in that case where "there [was] virtually no `uncertainty'" that an erroneous instruction on elements of a crime explained the inconsistency); State v. Short, 131 N.J. 47, 59-60 (1993) (directing that jurors should not consider the punishment in deciding guilt or innocence); Caldwell v. Mississippi, 472 U.S. 320, 341, 105 S.Ct. 2633, 2646, 86 L. Ed. 2d 231, 247 (1985) (reversing on an argument made by the prosecutor that had the capacity to dilute the jury's sense of responsibility). Because nothing the judge or prosecutor said, viewed individually or collectively, linked the term lesser with resulting punishment, we find that these arguments have insufficient merit to warrant any additional discussion. R. 2:11-3(e)(2).

In contrast, defendant's claim of illegality related to his sentence is meritorious. Merger of defendant's conspiracy convictions, both based upon a single distribution of cocaine, was required. State v. Dillihay, 127 N.J. 42, 48-51 (1992). Accordingly, this case is remanded for merger of those convictions and correction of the judgment of conviction to eliminate the sentence and all penalties associated with defendant's conviction for distribution (count one).

Turning to the sentences, defendant and the State represent that defendant was sentenced to a discretionary extended term as a persistent offender, pursuant to N.J.S.A. 2C:44-3a, and the transcript of the sentencing proceeding demonstrates that the judge imposed an extended term on that basis.1 We find no basis for intervention, however. The judge's findings on and balancing of the aggravating and mitigating factors and on the imposition of a consecutive sentence for the crime resentenced because of his violation of probation are supported by adequate evidence in the record. Moreover, the sentence is consistent with the sentencing provisions of the Code of Criminal Justice as well as with State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L. Ed. 2d 308 (1986), and it is not shocking to the judicial conscience. See State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Cassady, 198 N.J. 165, 180-81 (2009).

Defense counsel contends that in selecting a sentence among the "full range of sentences opened up to the court" after the judge found that the defendant qualified for an extended term as a persistent offender, the judge did not address the consideration of the deterrent need to protect the public, as required by State v. Pierce, 188 N.J. 155, 167-68 (2006). As the State observes, however, the judge said the following: "his prior record indicates a need to deter and the public needs protection from these types of activities, these [sic] other[s] similarly situated to him need to get the message to stop." Because the judge made those statements, defendant's claim is not supported by a fair reading of the record.

Affirmed in part; reversed in part and remanded for merger of defendant's conspiracy convictions and correction of the judgment of conviction to eliminate the sentence and all penalties imposed on the merged conviction.