On appeal from the Superior Court of New Jersey, Law Division, Union County.
Approved for Publication May 2, 1996.
Before Judges Stern, Wallace and Newman. *fn1 The opinion of the court was delivered by Stern, J.A.D.
The opinion of the court was delivered by: Stern
The opinion of the court was delivered by STERN, J.A.D.
The principal issue raised on this appeal is whether defendant is entitled to "jail time" credit, pursuant to R. 3:21-8, for the time he was required to participate in an electronic monitoring wristlet program as a condition of his pretrial release. We hold that he is not, reject his other challenges to the sentence, and affirm his sentence without the award of such credits.
Defendant was indicted for murder, N.J.S.A. 2C:11-3a (count one), aggravated manslaughter, N.J.S.A. 2C:11-4a (count two), and possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4a (count three). Pursuant to a negotiated Disposition, he pled guilty to reckless manslaughter (as a downgraded offense on count two) in exchange for a recommendation of a five year sentence with a three year parole disqualifier. He received that sentence together with a $1,000 VCCB penalty. Counts one and three were dismissed as part of the negotiated Disposition.
At the time of plea defendant testified that the victim, Michael LaFerrara, came to his home on a Sunday morning, that he was scared of the victim and that he told LaFerrara to leave. According to defendant
I told him to get away from my home. Leave my family alone. And I thought he was going for a gun with a swinging motion, and I acted too quickly and I fired a couple of shots.
Defendant acknowledged he did not see a gun or weapon in the possession of the victim, but went to get a handgun when he heard "loud banging at the door," became "scared," "was in fear," and "thought it was a person that was after --" someone in his family.
At sentencing defense counsel asked for a downgrade of the second degree charge to third degree for sentencing under N.J.S.A. 2C:44-1f(2) and for imposition of a three year term with the mandatory three year parole ineligibility term. He acknowledged a Graves Act sentence was required. The prosecutor asked that the negotiated plea of five years with three years of ineligibility be imposed.
The Judge, in a detailed exposition, expressed why he accepted the negotiated plea. In essence, the Judge noted that the offense occurred at the defendant's home; that two independent witnesses indicated they heard threats made by the victim; that while he would reject imperfect self-defense because of where the shooting occurred (at the curb side near the car), it was an issue in the case; that while the victim's family believed the victim was shot in the back, he was shot in the side, and that only one bullet went into the victim's body supporting defendant's position of a reckless accident. In essence, the Judge concluded
the State could get at best an aggravated manslaughter and considering the nature of the offense and the defendant's past and I knew all about this, the State was going to end up with ten with a three and a third under the law.
The Judge also noted that, independent of whether the victim was a loan shark, the reality was that the weapons offense would merge; that the State would end up at best with an aggravated manslaughter conviction, and that the mitigating factors (this being defendant's first conviction for any offense) outweighed the aggravating. The Judge emphasized that the three years of parole ineligibility were the equivalent of about a fifteen year State prison sentence and that the negotiated sentence with a three year parole ineligibility term was only six months less real time to be served than the three and-a-third year parole bar which would follow an aggravated manslaughter conviction.
When the appeal was argued on the Oral Argument Sentencing calendar, defendant indicated a desire to brief certain issues. We granted such leave and defendant's subsequent request for further oral argument which was conducted ...