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State v. Berger

Decided: July 29, 1992.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JEREMY BERGER, DEFENDANT-APPELLANT



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

Havey and Stern. The opinion of the court was delivered by Stern, J.A.D.

Stern

The opinion of the court was delivered by

STERN, J.A.D.

This appeal raises the unresolved question of whether an indeterminate term for a young adult offender, less than 26 years of age, under N.J.S.A. 2C:43-5 imposed on a violation of probation for a third degree crime, violates the principles of State v. Baylass, 114 N.J. 169, 553 A.2d 326 (1989), and State v. Molina, 114 N.J. 181, 553 A.2d 332 (1989). The appeal requires analysis of that issue in the context of a contention that, at

least with respect to some third degree crimes, primary parole eligibility occurs later in time on an indeterminate sentence than with respect to a presumptive four year sentence.

The background giving rise to this appeal is undisputed. On June 20, 1988 defendant pled guilty to a one count accusation charging him with third degree possession of heroin, N.J.S.A. 2C:35-10a(1). Other charges were recommended for dismissal as part of the negotiated Disposition and the prosecutor recommended a "non-custodial" sentence. On October 21, 1988 defendant was placed on probation for three years with various conditions including submission to "a drug abuse evaluation" and treatment if "needed," performance of 100 hours of community service, payment of a $500.00 fine, a $50.00 Violent Crimes Compensation Board penalty and a $1,000 D.E.D.R. penalty. Defendant's driver's license was also suspended for twelve months. The trial Judge gave the following statement of reasons for the sentence imposed:

You are 22 years of age and this represents your second conviction of an indictable nature. However, I note that you have an extensive number of arrests for various matters relating to juvenile offenses and disorderly persons offenses which go back to 1979 when you were 13 years of age. I would note that the presumption of non-incarceration for a third degree offense pursuant to NJS 2C:44-1e would not apply in your case because of your extensive criminal record. However, given your youth and the representation that the amount of drugs was very small and given the plea agreement recommended by the prosecutor's office, I will reluctantly impose a non-custodial sentence. However, as conditions of probation, I will order the payment of a fine, performance of community service and drug evaluation and treatment.

No aggravating or mitigating factors were expressly stated at the time of sentencing or in the judgment of conviction.

On May 25, 1990 defendant pled guilty to a new non-indictable marijuana possession charge and recognized that the plea acknowledged guilt of a violation of probation.*fn1 On July 13,

1990 defendant was sentenced on the violation of probation to an "indeterminate term not to exceed five years at the Garden State Reception and Youth Correction Facility at Yardville." In imposing sentence the Judge said to defendant:

And the fact of the matter, Mr. Berger, is you have been given innumerable opportunities to rehabilitate yourself, arrangements have been made to provide you with treatment, you have rejected everyone of those efforts. And you simply are a very poor and totally unsuitable candidate for probation.

At the time of your original sentence the Court found that there were two aggravating circumstances, namely factor three, the risk that you would commit another offense, and factor nine, the need to deter you from violating the law.

Because of your youth the Court thought that perhaps there was a mitigating circumstance, that you were prepared to respond to probationary ...


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