Opinion
DOCKET NO. A-2031-11T2
03-01-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RICKY GREENE a/k/a RICHARD L. HOWARD, RICKY L. GREENE, RICHARD L. GREENE and STEVEN HOWARD, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief). Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Accurso.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-06-1037.
Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief).
Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, on the brief). PER CURIAM
Defendant Ricky Greene appeals a sentence imposed following permanent revocation of special probation pursuant to N.J.S.A. 2C:35-14. Oral argument on defendant's appeal from this sentence was initially heard on an excessive sentence calendar in accordance with Rule 2:9-11, but the panel entered an order postponing disposition to permit full briefing and submission to a panel on a regular calendar.
Defendant pled guilty to possessing a controlled dangerous substance (CDS) with intent to distribute in a school zone, N.J.S.A. 2C:39-7. Because of his prior convictions for possession of a CDS with intent to distribute, defendant was subject to a mandatory extended term and a mandatory period of parole ineligibility pursuant to N.J.S.A. 2C:43-6f and N.J.S.A. 2C:43-7c. Nevertheless, in return for defendant's plea of guilty, the State agreed to recommend a five-year term of special probation authorized by N.J.S.A. 2C:35-14a. The plea form also stated, "alt. offer: 7 years with 42 months parole ineligibility."
Before accepting defendant's plea, the judge asked defendant to explain what would happen if he were to violate his special probation. He responded, "[A]s a[n] alternative sentence, I would be exposed to a seven with a three and [a] half mandatory minimum stipulation, Your Honor."
At sentencing, the judge found no mitigating factors and three aggravating factors — defendant's criminal record, risk of recidivism and the need to deter him and others, N.J.S.A. 2C:44-1a(3), (6), (9). Although the judge was clearly convinced that the aggravating factors substantially outweighed the mitigating, the judge determined that pursuant to N.J.S.A. 2C:35-14 the prosecutor had agreed that defendant, "a drug dependent person . . . [who is] not a danger to the community," could be sentenced to a drug-treatment program as a condition of probation.
The judgment of conviction states:
This is a N.J.S.A. 2C:35-14(a) sentence. As an alternative sentence to the Brimage[] offer on Count 3, defendant is hereby sentenced to 5 years Special Probation (Drug Court Program). [Conditions omitted here]. In the event that this defendant [is] found to be unsuitable to continue in Drug Court, the Court may sentence defendant to 7 years to the custody of the Commissioner of the Department of Corrections with 42 months parole ineligibility; defendant shall abide by all . . . Drug Court and all . . . Probation requirements . . . .
State v. Brimage, 153 N.J. 1 (1998). To the extent the reference to Brimage suggests reliance on N.J.S.A. 2C:35-12, it is inaccurate. See State v. Bishop, ___ N.J. Super. __, ___ (App. Div. 2013) (slip op. at 25).
About one year and seven months after defendant was sentenced to special probation, he pled guilty to violating several of the conditions. The judge found no mitigating factors and the same three aggravating factors she found at the time of the initial sentencing. Again concluding that the aggravating factors substantially outweighed the nonexistent mitigating factors, the judge indicated that she wished she could be more lenient but advised defendant that she could be more punitive because defendant was subject to a ten-year term of imprisonment and a five-year-minimum term. The judge explained, "So, my leniency will come in the form of I'm going to give you what the State is recommending . . . seven years with a 42 month period of parole ineligibility."
On appeal defendant argues:
I. THE COURT ABUSED ITS DISCRETION AND CONTRAVENED STATE V. BAYLASS AND STATE V. VASQUEZ WHEN IT IMPOSED A SEVEN-YEAR PRISON TERM WITH A 42-MONTH PAROLE DISQUALIFIER FOR A VIOLATION OF PROBATION.
Neither of the precedents upon which defendant relies addresses sentencing following revocation of special probation authorized by N.J.S.A. 2C:35-14. State v. Baylass, 114 N.J. 169, 172-81 (1989), deals with sentencing following revocation of ordinary probation pursuant to N.J.S.A. 2C:45-3, not special probation pursuant to N.J.S.A. 2C:35-14f(4). State v. Vasquez, 129 N.J. 189, 197-210 (1992), concerns revocation of a probationary sentence on the prosecutor's waiver of a parole ineligibility term mandated by N.J.S.A. 2C:35-7. See N.J.S.A. 2C:35-12.
State v. Molina, 114 N.J. 181, 182-87 (1989), a companion to Baylass, addresses sentencing for a drug offense committed prior to the transfer of drug crimes from Title 24 into the Criminal Code.
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Judge Lisa, writing for another panel of this court, has set forth "the principles applicable to resentencing a defendant whose special probation pursuant to N.J.S.A. 2C:35-14 has been permanently revoked." State v. Bishop, ___ N.J. Super. ___, __ (App. Div. 2013) (slip op. at 2). We have considered this record and defendant's arguments in light of Bishop, and we have concluded that defendant's arguments lack sufficient merit to warrant discussion beyond what is stated in Bishop. R. 2:11-3(e)(2).
For the reasons stated in Bishop, defendant's sentence is controlled by and consistent with N.J.S.A. 2C:35-14f, :35-7, :43-6f, :43-7 and :44-1a to b. Moreover, the judge's findings on and balancing of the aggravating and mitigating factors are supported by the record and the sentence is neither shocking to the conscience nor an abuse of discretion. See State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Cassady, 198 N.J. 165, 180-81 (2009). Finally, we are confident that the judge understood she was not obligated to impose the sentence recommended by the State and understood that she had the discretion to impose any sentence within the permissible range. See Bishop, supra, __ N.J. Super. ____ (slip op. at 27).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION