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

STATE OF NEW JERSEY, Plaintiff
- Respondent,

v.
K EV IN LAMBERT, Defendant
- Appellant.

________

_____________________________ Argued May 18, 2017

– Decided 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 Defende r, 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PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitu te precedent or be binding upon any court . " A lthough 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.

June 5, 2017A - 1996
- 15T4 2 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 s ubstance, 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 w as sentenced to an a ggregate 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 conviction s and sentence
and orde red 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, d efendant was sentenced to an extended term of imprisonment for seven years, with a three
- and
- a - half year period of parole inel igibility , a nd
to a concurrent term of eighteen months for possession of the stun gun .A - 1996
- 15T4 3 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 AMENDMEN T 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 concur s N.J.S.A. 2C:39
- 3(h) , which solely governs the possession of a stun gun, viol ates 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 co nviction be remanded for resentencing. Accordingly, the conviction for fourth
- degree possession of a prohibited weapon is vacated. T he sentence for possession of a controlled dangerous substance with intent to distribute is
vacated and r emanded for rese ntencing. Vacated in part, and remanded for resentencing. We do not retain jurisdiction.