Before Judges Muir, Jr., and Lesemann.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 November 16, 1999
On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
This appeal centers on the applicability and constitutionality of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant, pursuant to a negotiated plea which included his written acknowledgment that NERA's 85% parole ineligibility requirement applied to any sentence imposed, pled guilty as an accomplice to first-degree robbery and other crimes. The trial court imposed a twenty-year prison sentence with an 85% parole ineligibility term on the robbery charge. Defendant appeals, contending NERA does not apply to accomplice liability for first-degree offenses. He alternately argues imposition of the 85% parole ineligibility provision violates the cruel and unusual punishment proscriptions of the state and federal constitutions. Finally, he argues the sentence imposed is excessive. We affirm.
A Bergen County Grand Jury issued a multiple count indictment after an armed robbery at the Radisson Inn in Paramus. The indictment charged defendant and his two co-defendants, Everton Watts and Raheam Goosby, with first-degree armed robbery (N.J.S.A. 2C:15-1, count one); second-degree aggravated assault on a police officer (N.J.S.A. 2C:12-1b(1), count two); third-degree aggravated assault on police officers (N.J.S.A. 2C:12-1b(2), counts three and six); fourth-degree aggravated assault on police officers (N.J.S.A. 2C:12-1b(4), counts four, five, six, eight, nine, ten, and eleven); fourth-degree resisting arrest (N.J.S.A. 2C:29-2a, counts twelve, thirteen, and fourteen); second-degree possession of two handguns for unlawful use purposes (N.J.S.A. 2C:39-4a, count fifteen); third-degree unlawful possession of two handguns (N.J.S.A. 2C:39-5b, count sixteen); fourth-degree unlawful possession of hollow-nose bullets (N.J.S.A. 2C:39-3f, count 17); third-degree possession of cocaine (N.J.S.A. 2C:35-10a(1), count eighteen); fourth-degree riding in a stolen car (N.J.S.A. 2C:20-10d, count twenty); and fourth-degree theft by receiving stolen property (N.J.S.A. 2C:20-7, count twenty-one). The indictment charged defendant individually with third-degree theft by receiving stolen property, a motor vehicle (N.J.S.A. 2C:20-7, count nineteen).
The plea negotiated called for defendant to plead guilty to counts one, seven, twelve, fourteen, eighteen, and nineteen, with the remaining charges to be dismissed. The State agreed to recommend a sentence not to exceed twenty years.
Defendant signed two plea forms which explicated the terms of the plea. The first was the conventional plea form, which is not an issue on this appeal. The second was entitled, "Supplemental Plea Form for No Early Release Act Cases." The Supplemental Plea Form provided:
The following questions need to be answered only if you are pleading guilty to a first or second degree violent crime and the crime occurred on or after June 9, 1997.
A violent crime means any crime in which you caused death, serious bodily injury, or you used or threatened the immediate use of a deadly weapon. A violent crime also includes any aggravated sexual assault, or sexual assault in which you used, or threatened the immediate use of, physical force. Deadly weapon means any firearm or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner in which it is used or intended to be used, is known to be capable of producing death or serious bodily injury. Serious bodily injury means bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.
1. Are you pleading guilty to any first or second degree violent crime? [YES] [NO]
2. a. Do you understand that because of your plea of guilty to Robbery (LIST FIRST While Armed - 1 OR SECOND DEGREE VIOLENT CRIMES)
you will be required to serve 85% of the sentences imposed for that offense(s) before you will be eligible for parole ...