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State v. Lark

Decided: January 12, 1989.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
WAVERLY LARK, DEFENDANT-APPELLANT



On appeal from Superior Court of New Jersey, Law Division, Atlantic County.

King, Brody and Ashbey. The opinion of the court was delivered by Brody, J.A.D.

Brody

Pursuant to an amended plea agreement, defendant was convicted in 1985 of two first-degree aggravated sexual assaults committed during the commission of separate burglaries, N.J.S.A. 2C:14-2a(3). A staff psychologist at the Adult Diagnostic and Treatment Center (ADTC or Avenel) having concluded that defendant's assaultive sexual conduct was repetitive and compulsive, the trial judge imposed a ten-year prison term for one of the assaults, two years to be served before parole eligibility, followed by a ten-year term for the other assault to be served at Avenel. The judge also assessed a penalty in the amount of $1,000 for each conviction. He dismissed numerous other charges as required by the agreement. Defendant did not appeal.

Two years later, defendant filed a petition for post-conviction relief. R. 3:22-1. He claimed that his attorney in these matters had not provided him effective legal assistance in several respects unrelated to the manner in which his plea had been taken. He also contended that his sentence was illegal because it did not conform to the terms of the plea agreement. The trial judge denied the petition.

In this appeal from that denial, defendant has abandoned the arguments he raised in the trial court and now makes the following arguments:

I. THE TRIAL COURT'S CONDUCT IN AMENDING THE PLEA AGREEMENT AT THE TIME OF SENTENCING AND ITS FAILURE TO EXPLAIN TO THE DEFENDANT HE HAD THE RIGHT TO WITHDRAW HIS

PLEA, VIOLATED BOTH RULE 3:9-2 and RULE 3:9-3(a) AND RENDERED DEFENDANT'S PLEA INVOLUNTARY.

II. THE DEFENDANT'S SENTENCE VIOLATED THE ORIGINAL PLEA AGREEMENT BY EXPOSING HIM TO A POSSIBLE PERIOD OF CONFINEMENT LONGER THAN THAT CONTEMPLATED UNDER ITS TERMS.

III. THE COURT'S FAILURE TO ADVISE DEFENDANT OF THE PAROLE IMPLICATIONS OF AN AVENEL SENTENCE REQUIRES THAT DEFENDANT'S CASE BE REMANDED. (Not Raised Below.)

IV. IMPOSITION OF A TOTAL VIOLENT CRIMES COMPENSATION BOARD PENALTY OF $2,000.00 WAS AN INTEGRAL AND MATERIAL PART OF DEFENDANT'S SENTENCE AND EXCEEDED DEFENDANT'S REASONABLE EXPECTATIONS. (Not Raised Below.)

V. THE TRIAL COURT FAILED TO PROPERLY WEIGH AGGRAVATING AND MITIGATING FACTORS AND ITS IMPOSITION OF CONSECUTIVE SENTENCES WITH A MANDATORY MINIMUM WAS INCONSISTENT WITH THE IMPOSITION OF MINIMUM TERMS.

Although defendant designates only points III and IV as not having been raised below, as we read the record he raised none of his ...


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