Opinion
DOCKET NO. A-0744-11T2
02-28-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANTONIO L. BENDERS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Brian Uzdavinis, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Alvarez.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Accusation No. 11-04-0146.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Brian Uzdavinis, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Antonio L. Benders appeals his May 23, 2011 convictions for second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); second-degree certain persons not to possess weapons, N.J.S.A. 2C:39-7(b); and second-degree possession with intent to distribute a controlled dangerous substance within 500 feet of public property, N.J.S.A. 2C:35-7.1(a) and - 5. After consideration of the contentions he advances on appeal, we affirm.
Defendant was arrested for a parole violation on an unrelated offense on April 30, 2010. During the ensuing search, he was found to be in possession of eight grams of heroin and a loaded .44 caliber handgun. Defendant was incarcerated on the parole violation from the date of arrest until December 2010, after which he continued in custody due to the April 2010 charges.
On April 4, 2011, the trial judge denied defendant's speedy trial motion. The court found that the four months between the completion of defendant's parole violation sentence and the court date did not warrant dismissal, however, his bail was reduced.
Approximately a week later, on April 15, 2011, defendant entered guilty pleas to all the charges. Accordingly, on May 23, 2011, pursuant to a plea agreement with the state, defendant was sentenced to three concurrent ten-year terms of imprisonment, each subject to five years of parole ineligibility. This appeal followed.
Defendant raises the following points of error:
POINT I
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR[.] 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE UNREASONABLE PRE-INDICTMENT DELAY.
POINT II
THE SENTENCE IS EXCESSIVE: THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING CIRCUMSTANCES.
In the first point of his brief, defendant reasserts that the delay between arrest and motion hearing violated both his Fifth Amendment right to due process and his Sixth Amendment right to a speedy trial. The State explained the lapse in time was due in part to a delay in obtaining the State laboratory results confirming the contraband seized actually were controlled dangerous substances.
In determining whether a defendant's right to speedy trial has been violated, we apply the same balancing test as do the federal courts. The factors to be considered are: (1) the length of the delay; (2) the reasons for the delay; (3) whether and how defendant has asserted his right to a speedy trial; and (4) the prejudice defendant incurred as a result of the delay. State v. Szima, 70 N.J. 196, 200-01, cert. denied, 429 U.S. 896, 97 S. Ct. 259, 50 L. Ed. 2d 180 (1976) (adopting the United States Supreme Court's balancing test from Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972)). In applying this test, a court may consider such additional factors as it deems appropriate. Barker, supra, 407 U.S. at 533, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118. In this case, like in Szima, defendant "was not subjected to lengthy pretrial incarceration." Szima, supra, 70 N.J. at 202.
Furthermore, defendant does not explain how he was prejudiced by the State's delay. Defendant was incarcerated for approximately four months while awaiting disposition of these charges after his parole violation custody was terminated. The possessory charges ultimately resulted in a guilty plea and a sentence to ten years imprisonment. Thus the time he spent in custody attributable to these charges was brief, and the delay had no impact that we can discern from the record on any potential defenses.
Nor does defendant explain why the reasons for the delay were improper. In challenging the State's reason for delay, a backlog at the State Police laboratory, defendant merely questions the State's assertion because it lacked supporting details. He does not assert that the delay was caused by the prosecutor, or that it was for some inappropriate motive.
Insofar as defendant's second point of contention, that the sentence imposed in accordance with the plea agreement was excessive, we review sentencing decisions not to substitute our own judgment for that of the trial court, but to assess whether the aggravating and mitigating factors found by the trial court are supported by the record. State v. Bieniek, 2 00 N.J. 601, 607-09 (2010). If a trial court's findings of aggravating and mitigating factors are supported by the record, the overall sentence complies with the Code, and the individual sentence does not shock our conscience, the result will be upheld. Id. at 608.
Defendant, who was thirty years old on the date of sentencing, had been previously convicted of approximately two disorderly persons offenses as well as eight prior indictable matters including two prior handgun possession offenses. Not surprisingly, the court found aggravating factors three, N.J.S.A. 2C:44-1(3), six, N.J.S.A. 2C:44-1(6), nine, N.J.S.A. 2C:44-1(9), and eleven, N.J.S.A. 2C:44-1(11). Given defendant's prior criminal history and the fact that the arrest occurred while he was on parole, there is adequate support for the aggravating factors. That defendant cooperated with the investigation of this possessory offense is no basis for any mitigating factor; the record does not warrant even a suggestion of another mitigating factor.
Defendant received three concurrent ten-year prison terms with five-year terms of parole ineligibility on each of the three second-degree crimes. The sentence does not shock our conscience.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION