On appeal from the Superior Court of New Jersey, Law Division, Camden County.
Bischoff, King and Polow. The opinion of the court was delivered by King, J.A.D.
This case presents the issue of whether a sentencing judge may impose a mandatory parole ineligibility term in conjunction with an indeterminate sentence of a young adult offender.
Under a multi-count indictment defendant was convicted of robbery in the first degree, N.J.S.A. 2C:15-1 (count 1), aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a) (count 2) and criminal coercion in the third degree, N.J.S.A. 2C:13-5(a)(1) (count 4). He was sentenced on count 1 to "the custody of the Commissioner of the Department of Corrections for an indeterminate term at the Youth Correctional Institution Complex at Yardville not to exceed fifteen (15) years." On counts 2 and 4 he received "indeterminate terms not to exceed four (4) years to run concurrent to each other and concurrent to Count One."
The sentencing judge further noted on the order for commitment: "Defendant not eligible for parole for a period of five (5) years."
On this appeal defendant raises four points. He alleges that "(a) the trial judge erred in denying defendant's motion for a judgment of acquittal concerning count 1, robbery, (b) the trial judge committed plain error in his instructions to the jury in his definition of robbery (not raised below), (c) the trial court misconstrued N.J.S.A. 2C:13-5 as it does not apply to the defendant, and (d) the sentence imposed by the trial judge below is manifestly excessive." We conclude that the first three points are clearly without merit and affirm the judgment of conviction. R. 2:11-3(e)(2).
We do not pass on the alleged excessiveness of sentence because we conclude that the sentence was illegal. Indeed, the State confesses error and concedes the illegality of the sentence. The judge sentenced defendant to an indeterminate term at the Yardville complex pursuant to N.J.S.A. 2C:43-5, "Young Adult Offenders," which states:
Any person who, at the time of sentencing, is less than 26 years of age and who has been convicted of a crime may be sentenced to an indeterminate term at the Youth Correctional Institution Complex in accordance with R.S. 30:4-146 et seq. in the case of men, and to the Correctional Institution for Women, in accordance with R.S. 30:4-153 et seq. , in the case of women, instead of the sentences otherwise authorized by the code.*fn1 [Emphasis supplied]
The judge also imposed a five-year parole ineligibility term under N.J.S.A. 2C:43-6(b) which states:
b. As part of a sentence for a crime of the first or second degree and notwithstanding the provision of 2C:43-9, the court may fix a minimum term not to exceed one-half of the term set pursuant to subsection a. during which the defendant shall not be eligible for parole provided that no defendant shall be eligible for parole at a date earlier than otherwise provided by the law governing parole.*fn2
We agree with the State that the minimum parole eligibility term in N.J.S.A. 2C:43-6(b) relates only to sentences for fixed terms imposed pursuant to that section. See, also, N.J.S.A. 2C:43-7(b), relating to minimum parole eligibility terms for extended ...