                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
         parties in the case and its use in other cases is limited. R.1:36-3.


                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1996-15T4




STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

KEVIN LAMBERT,

        Defendant-Appellant.

_____________________________________

              Argued May 18, 2017 – Decided June 5, 2017

              Before Judges Hoffman and O'Connor.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Indictment
              No. 09-12-2063.

              Joshua D. Sanders, Assistant Deputy Public
              Defender, argued the cause for appellant
              (Joseph E. Krakora, Public Defender,
              attorney; Mr. Sanders, of counsel and on the
              brief).

              Sarah Lichter, Deputy Attorney General,
              argued the cause for respondent (Christopher
              S. Porrino, Attorney General, attorney;
              Joseph A. Glyn, of counsel and on the
              brief).

PER CURIAM
    Defendant Kevin Lambert was convicted by a jury of second-

degree possession of a weapon while engaged in the course of

distributing a controlled dangerous substance, N.J.S.A. 2C:39-

4.1(c); third-degree possession of cocaine, N.J.S.A. 2C:35-

10(a)(1); third-degree possession with intent to distribute less

than one-half ounce of cocaine, N.J.S.A. 2C:35-5(a)(1) and

2C:35-5(b)(3); and fourth-degree possession of a prohibited

weapon, N.J.S.A. 2C:39-3(h).   He was sentenced to an aggregate

term of thirteen years imprisonment.

    Defendant appealed his convictions and sentence.

Concluding evidence adduced by the State compromised defendant's

right to a fair trial, we reversed the convictions and sentence

and ordered a new trial.   See State v. Kevin Lambert, No. A-

2698-12 (App. Div. Apr. 9, 2015).

    On remand, defendant pled guilty to third-degree possession

of a controlled dangerous substance with intent to distribute,

N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3), and fourth-

degree possession of a prohibited weapon, a stun gun, N.J.S.A.

2C:39-3(h).   On the drug possession conviction, defendant was

sentenced to an extended term of imprisonment for seven years,

with a three-and-a-half year period of parole ineligibility, and

to a concurrent term of eighteen months for possession of the

stun gun.
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                                                         A-1996-15T4
    On appeal, defendant asserts the following arguments:

         POINT I: NEW JERSEY'S PER SE BAN ON STUN
         GUNS, N.J.S.A. 2C:39-3(h), IS
         UNCONSTITUTIONAL UNDER THE SECOND AMENDMENT
         NECESSITATING THAT THIS COURT VACATE MR.
         LAMBERT'S CONVICTION.

         POINT II: BECAUSE THE SENTENCING COURT
         FUNDAMENTALLY MISCONSTRUED THE LIMITED
         BINDING NATURE OF N.J.S.A. 2C:35-12, THIS
         MATTER MUST BE REMANDED FOR RESENTENCING ON
         COUNT TWO.

         POINT III: THE IMPOSITION OF A PERIOD OF
         PAROLE INELIGIBILITY UNDER N.J.S.A. 2C:43-
         6(f), IN EXCESS OF THE MANDATORY MINIMUN,
         VIOLATES ALLEYNE V. UNITED STATES.

    In its brief, the State concurs N.J.S.A. 2C:39-3(h), which

solely governs the possession of a stun gun, violates the Second

Amendment, U.S. Const. amend. II, and is unconstitutional, and

thus defendant's conviction under this statute must be vacated.

The State also agrees the trial court misconstrued N.J.S.A.

2C:35-12, requiring the sentence on the remaining conviction be

remanded for resentencing.

    Accordingly, the conviction for fourth-degree possession of

a prohibited weapon is vacated.       The sentence for possession of

a controlled dangerous substance with intent to distribute is

vacated and remanded for resentencing.

    Vacated in part, and remanded for resentencing.       We do not

retain jurisdiction.

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