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State v. Rivera

Decided: May 23, 1991.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT
v.
MICHAEL RIVERA, DEFENDANT-RESPONDENT



On appeal from the Superior Court, Appellate Division.

The opinion of the Court was delivered by Pollock, J. Chief Justice Wilentz and Justices Clifford, Handler, O'Hern, Garibaldi, and Stein join in this opinion.

Pollock

This appeal centers on the propriety of conditionally suspending the imposition of a sentence for the commission of a second-degree offense. Pursuant to a plea agreement, defendant, Michael Rivera, pled guilty to second-degree robbery contrary to N.J.S.A. 2C:15-1, an offense that is subject to a term of imprisonment between five and ten years, see N.J.S.A. 2C:43-6a(2), with a presumptive term of five years, see N.J.S.A. 2C:44-1d. At the sentencing hearing, the trial court suspended the imposition

of sentence for two years, subject to certain conditions. In an unreported decision, the Appellate Division affirmed. We granted the State's motion for leave to appeal, N.J. (1990), and now reverse the judgment of the Appellate Division and remand the matter to the Law Division for resentencing.

-I-

On July 24, 1989, defendant, who was on two years' probation for burglary and aggravated assault convictions, pled guilty to second-degree robbery. Apparently, both the present offense and the earlier ones were related to defendant's drug addiction. Under the terms of the plea agreement, the State agreed to recommend a custodial term not to exceed five years.

On September 22, 1989, when defendant appeared for sentencing, the court declined to follow the terms of the plea agreement, to review the aggravating and mitigating factors, or to impose the five-year presumptive period of Incarceration. Instead, the court suspended the imposition of sentencing until September 26, 1991, provided that defendant abide by the following conditions: (1) defendant is to enter a long-term drug rehabilitation program; (2) defendant is to reside with his father in Puerto Rico; (3) defendant is to have no involvement with drugs; (4) defendant is not to commit any criminal offense; (5) the court is to receive bimonthly reports on defendant's progress from the drug rehabilitation program; and (6) defendant waives his right to contest extradition from Puerto Rico. A violation of any of the conditions would result in immediate sentencing. The court declined to call its action the imposition of a suspended sentence with probation, instead calling it a conditional suspension of the imposition of sentencing.

-II-

N.J.S.A. 2C:43-2, on which the Appellate Division relied, provides:

a. Except as otherwise provided by this code, all persons convicted of an offense or offenses shall be sentenced in accordance with this chapter.

b. Except as provided in subsection a. of this section and subject to the applicable provisions of the code, the court may suspend the imposition of sentence on a person who has been convicted of an offense * * * .

N.J.S.A. 2C:45-1a elaborates: "When the court suspends the imposition of sentence * * *, it shall attach such reasonable conditions, authorized by this section, as it deems necessary to insure that [defendant] will lead a law-abiding life or is likely to assist him to do so." The statute then lists conditions that the court may impose on a defendant whose sentence has been suspended. N.J.S.A. 2C:45-1b.

We have stated, however, that "2C:43-2(b) does not of itself give the court the power to suspend sentence. That power is granted in Chapter 44 of the New Jersey Criminal Code. 2C:43-2, then, is not the first stop for a court when it sentences. Absent diversion through [pretrial intervention] or another program, a ...


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