                    NOT FOR PUBLICATION WITHOUT THE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,   156    N.J.   1,   82   (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, 206

N.J. 141, 157 (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, 359 N.J. Super. 241

(App. Div.), certif. denied, 177 N.J. 577 (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, 185

N.J. 504, 507 (2006); see State v. Sowell, 213 N.J. 89, 100

(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.,    213       N.J.     542,    561    (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., 183 N.J. 308, 332 (2005).                             "It is not improper

for the prosecution to suggest that the defense's presentation

was imbalanced and incomplete."                   State v. Timmendequas, 161 N.J.

515, 593 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151

L. Ed. 2d 89 (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, 196 N.J. 23, 42 (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, 190 N.J. 397, 437-38 (2007), cert. denied,

552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (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, 183 N.J.

Super. 463, 469 (App. Div. 1982); see Ingram, supra, 196 N.J. at

42; Timmendequas, supra, 161 N.J. at 576.


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, 329 N.J. Super. 79, 89 (App. Div.),

certif. denied, 165 N.J. 138 (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, 398 N.J. Super. 574, 595

n.4 (App. Div.), certif. denied, 195 N.J. 522 (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, 208 N.J. 385, 397 (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, 211 N.J.

394, 407 (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, 47

N.J. 455 (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."                  Farr, supra, 183 N.J. Super. at

469.        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.'"        Ibid.      In State v. Downey, 237 N.J. Super. 4, 16

(App. Div. 1989), certif. denied, 121 N.J. 627 (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, 58 N.J. 123, 135 (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, 340 N.J. Super.

204, 216 (App. Div.), certif. denied, 169 N.J. 610 (2001); see

State   v.     McGuire,       419     N.J.      Super.      88,    145   (App.        Div.)     ("A

prosecutor's         otherwise           prejudicial         comments     may        be      deemed

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

denied,      208     N.J.     335    (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, 112 N.J.

384, 427 (1988), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146,

103 L. Ed. 2d 205 (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, 212 N.J.

365, 409 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1504,

185 L. Ed. 2d 558 (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, 341 N.J. Super. 1, 43 (App. Div.), certif. denied,

170 N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S. Ct.

1594,   152    L.     Ed.   2d    510   (2002).       Because     "the   trial     court

promptly      and     effectively       dealt     with    those    comments      via    a

curative instruction," Wakefield, supra, 190 N.J. at 440, "the

references to defendant's impecuniosity played no part in the

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

139 N.J. Super. 58, 63 (App. Div. 1976), certif. denied, 75 N.J.

534 (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.                 Terrell, supra, 359

N.J.   Super.      at    245.    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.                          Id.

at   244,   247-48.        Finally,     the   trial     court   denied    Terrell's

objection, and gave no curative or limiting instruction.                               We

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

at 243.     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, 364 N.J. Super.

5
  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."
Terrell, supra, 359 N.J. Super. at 247.



                                         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, 199 N.J. 545, 559 (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," id. 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, 301

N.J. Super. 363, 441 (App. Div.), certif. denied, 151 N.J. 466

(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, 349

N.J. Super. 464, 479 (App. Div.), certif. denied, 174 N.J. 43

(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, 174 N.J. 583 (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 Smith, supra, 212 N.J. at 409.

      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.           Frisby,

supra, 174 N.J. at 591-92, 596.          Here, the detective's comment

was "considerably more limited in scope," State v. R.B., 183

N.J. 308, 333 n.5 (2005), "did not express an opinion as to

defendant's guilt," State v. Kemp, 195 N.J. 136, 157 (2008), and

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

trial,'" State v. Bunch, 180 N.J. 534, 549 (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.    Ibid.

                                           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, 379 N.J. Super. 250, 258 (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., 217 N.J. 83, 91 (2014)

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

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

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

language of the statute."            Ibid.

       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, 197 N.J. 325, 333 (2009)

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

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

terms.'"      Perrelli v. Pastorelle, 206 N.J. 193, 200 (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., 369

N.J.    Super.   291,    294   (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, 195 N.J. 475, 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.,

214 N.J. 419, 440 (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, 213 N.J. 500, 515 (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.'"                    Ibid.        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, 208 N.J. 439, 451-52

(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,

336    N.J.    Super.       601,    608   (App.        Div.    2001);       see    State     v.

Dillihay,      127    N.J.     42,    49-56      (1992)        (requiring         merger     of

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

v. Gonzalez, 123 N.J. 462, 464 (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

Dillihay, supra, 127 N.J. at 45, 52-56; State v. Parker, 335

N.J. Super. 415, 426 (App. Div. 2000).

       Convictions affirmed; remanded for resentencing.




                                            26                                      A-2055-10T1
