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

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

NOT FOR PUBLICATION WITHOUT THE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.

June 5, 2017
A-1996-15T4

2

Defendant Kevin Lambert was convicted by a jury of seconddegree 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. A2698-12 (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 fourthdegree 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. 
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 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.