Opinion
DOCKET NO. A-3467-13T3
05-23-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. BRIAN A. DELLO, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Lauren S. Michaels, Assistant Deputy Public Defender, of counsel and on the brief). Joseph Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Nicholas D. Norcia, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Gilson. On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 13-03-0569. Joseph E. Krakora, Public Defender, attorney for appellant (Lauren S. Michaels, Assistant Deputy Public Defender, of counsel and on the brief). Joseph Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Nicholas D. Norcia, Assistant Prosecutor, on the brief). PER CURIAM
On March 12, 2013, an Ocean County Grand Jury indicted defendant Brian A. Dello of third degree possession of heroin, N.J.S.A. 2C:35-10a(1), third degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3), and third degree possession of heroin with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7. Less than a month later, on April 15, 2013, defendant pled guilty pursuant to a negotiated agreement to third degree possession of heroin with intent to distribute within 1000 feet of school property.
Under the terms of the plea agreement, the State would recommend the court sentence defendant to a five-year term of imprisonment, with thirty-two months of parole ineligibility. Defendant agreed to testify as a witness for the State at the trial of his codefendant. Although the State's sentence recommendation was predicated on the Brimage guidelines, the prosecutor noted for the record that paragraph 21 of the standard plea form "indicates the [c]ourt will consider time served at the time of sentencing and probation."
State v. Brimage, 153 N.J. 1 (1998).
However, at the sentencing hearing held on June 14, 2013, the trial judge advised defendant that after reviewing his criminal history as documented in the Presentence Investigation Report, he was not willing to place him on probation conditioned on time served, as provided for in the plea agreement. The judge told defendant he had the option to retract his guilty plea and stand for trial, or standby his guilty plea knowing he was facing a state prison sentence. The judge adjourned the matter over the weekend to permit defendant time to consider his options.
See N.J.S.A. 2C:44-6 and Rule 3:21-2. --------
Defendant returned before the judge on Monday June 17, 2013, and formally retracted his guilty plea. Defendant also informed the court that he planned to apply for admission into Drug Court. However, on December 11, 2013, defendant appeared before the vicinage's Drug Court and told the judge he did not want to apply for Drug Court and requested his case be returned to the trial calendar. On January 6, 2014, the trial judge notified defendant that pursuant to N.J.S.A. 2C:35-14.1, he was ordering defendant into Drug Court.
You're going to be in drug court, you're going to start complying with the requirements of urine testing and other things. This is all going to be required for drug court. As a condition of your bail, I'm going to make you comply with anything they want you to do. If they want you to come in for urine testing, you're going to have to do that. The first time you violate, you're going to go upstairs.
The bottom line is you should go along with the drug court, it's going to be your best opportunity to address your substance abuse issues. We're going to make you do that, in any event, you are going to have to address your substance abuse issues. It's up to you how you're going to do it. We're going to
make you address your substance abuse issues. All right.
On January 27, 2014, defendant appeared before the vicinage's Drug Court represented by counsel and formally pled guilty to third degree possession of heroin with intent to distribute within 1000 feet of school property in violation of N.J.S.A. 2C:35-7. On February 10, 2014, pursuant to the plea agreement, defendant was sentenced to five years of special Drug Court probation in accordance with N.J.S.A. 2C:35-14. At that time, defendant was advised that if he violated the terms of the special probation he would be sentenced to a mandatory five-year term of imprisonment, with twenty-six months of parole ineligibility as required under the Brimage guidelines.
On August 25, 2014, defendant, represented by counsel, pled guilty to violating the terms of his Drug Court special probation. Specifically, defendant admitted that he: (1) failed to advise his probation officer of a change of address; (2) failed to appear for a Drug Court session; (3) failed to appear at all subsequent appointments; (4) absconded to whereabouts unknown; (5) failed to cooperate in examination, testing, counseling and outpatient treatment; and (6) failed to submit to drug or alcohol testing. The Drug Court Judge accepted defendant's guilty plea to violating the terms of his special probation and sentenced him to a five-year term of imprisonment, with twenty-six months of parole ineligibility, giving him credit for 556 jail-time days.
Against this record, defendant now appeals raising the following arguments.
POINT I
BECAUSE THE COURT INTENDED TO SENTENCE MR. DELLO TO PROBATION AND TIME SERVED PRIOR TO SEEING HIS PSR, AND THAN A FOUR FLAT AFTER REVIEWING MR. DELLO'S RECORD, THE FIVE YEAR SENTENCE WITH A 26-MONTH PAROLE BAR ALTERNATIVE SENTENCE, WHICH WAS IMPOSED AFTER THE VIOLATION OF MANDATORY-DRUG-COURT PROBATION[,] WAS EXCESSIVE. THE JUDGE ALSO ERRED IN IMPOSING THE DISCRETIONARY SCHOOL-ZONE PAROLE DISQUALIFIER, VIRTUALLY IGNORING ALL OF THE REQUIRED FACTORS OTHER THAN PRIOR RECORD.
A. The Judge Erred In His Application Of The Aggravating And Mitigating Factors In Imposing A Five-Year Sentence.
B. The Judge Erred In His Analysis Of Whether To Impose A Parole Disqualifier.
Relying on State v. Baylass, 114 N.J. 169 (1989), defendant argues the Drug Court failed to properly recalibrate the aggravating and mitigating factors under N.J.S.A. 2C:44-1 before automatically imposing the sentence for a violation of probation. Defendant's reliance on Baylass is misplaced. Defendant was given the opportunity to address his drug dependency and related issues through the special probation program made available by the Legislature in Drug Court under N.J.S.A. 2C:35-14. The sentence imposed by the Drug Court for the violation of the special probation was clearly explained to defendant by the Drug Court Judge at the time he pled guilty. The sentence imposed by the judge is in accordance with the special probation authorized by the Legislature under N.J.S.A. 2C:35-14. State v. Bishop, 429 N.J. Super. 533, 549 (App. Div. 2013), aff'd o.b., 223 N.J. 290 (2015).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION