Before Judges Muir, Jr., Wallace, Jr., and Cuff.
The opinion of the court was delivered by: Muir, Jr., P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 28, 1999
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County.
This appeal requires us to determine whether the No Early Release Act (Act), N.J.S.A. 2C:43-7.2, applies to defendant's conviction for reckless manslaughter and, if so, whether the Act's mandatory 85% minimum parole ineligibility provision violates the proscriptions against cruel and unusual punishment contained in the United States and New Jersey Constitutions. We conclude the Act applies to defendant's reckless manslaughter conviction and does not violate the cruel and unusual punishment proscriptions of the state and federal constitutions in this instance.
A Cumberland County Grand Jury indicted defendant on two counts of felony murder, N.J.S.A. 2C:11-3a(3); one count of first-degree robbery, N.J.S.A. 2C:15-1; one count of second-degree burglary, N.J.S.A. 2C:18-2; and one count of third-degree conspiracy to commit burglary, N.J.S.A. 2C:18-2, N.J.S.A. 2C:5-2. Pursuant to a negotiated plea, defendant pled guilty to the amended offense of reckless manslaughter, N.J.S.A. 2C:11-4b. The plea agreement allowed the prosecutor to argue for the applicability of the Act.
The trial court imposed a 10-year term of imprisonment. It also ruled the Act applicable and, consequently, imposed an 8½-year parole ineligibility term with a 3-year term of parole supervision upon release from jail. The court further imposed appropriate monetary penalties.
The facts elicited at the plea provided the predicate for the guilty plea. Defendant admitted that on November 7, 1997, he went to the home of Russell Hockenberry in the City of Bridgeton for the purpose of entering the house with intent to steal. Defendant believed Hockenberry was not home at the time. Upon entry through a door, defendant was surprised by Hockenberry's presence. Defendant claimed Hockenberry, who was startled by defendant's presence, fell back, down a set of stairs, and was knocked unconscious.
Defendant admitted he proceeded down the stairs, apparently to confirm the victim was unconscious. At that time, defendant placed a pillow under the victim's head. He then left the house only to return about one-half hour later when he again found the victim still unconscious. He again left and made no effort to summon assistance for the victim. The victim died as a consequence of the fall.
Defendant's presentence report contained information provided by a police report. In response to a report by local postal authorities that mail was accumulating at the victim's home, a Bridgeton police officer went to the home where he found the 70-year-old victim dead at the foot of the stairs. The victim died of a subdural hematoma caused by a fractured skull. The door of the house had been pried open with a screwdriver. Defendant's nephew told police he overheard defendant say on a telephone call he had pushed the victim down the stairs. Defendant denied pushing the victim. See State v. Sainz, 107 N.J. 283, 293 (1987) ("When a trial court imposes a sentence based on defendant's guilty plea, the defendant's admissions or factual version need not be the sole source of information for the court's sentencing decision . . . [and] the court may look to other evidence in the record when making such determinations. . . .").
The Act in pertinent part provides:
a. A court imposing a sentence of incarceration for a crime of the first or second degree shall fix a minimum term of 85% of the sentence during which the defendant shall not be eligible for parole if the crime is a ...