Before Judges D'Annunzio, Keefe, and Eichen.
The opinion of the court was delivered by: D'annunzio, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Ocean County.
Samuel Manzie, then 17 years of age, pleaded guilty to the murder of Edward Werner. Manzie committed the murder on September 27, 1997. At that time, Werner was 11 and Manzie was 15. The Family Part waived jurisdiction, and Manzie was indicted. Manzie entered his guilty plea against the advice of his counsel and his family. The State agreed to dismiss the other nine counts of the indictment, which included charges of aggravated sexual assault, aggravated criminal sexual contact, and first degree robbery. The State agreed not to seek a mandatory sentence of life imprisonment without parole under N.J.S.A. 2C:11-3b(3), which applies to the murder of a child under the age of 14 in the course of a sexual assault or criminal sexual contact. The State indicated, however, that it would seek a term of imprisonment up to life, as well as application of the No Early Release Act (NERA). NERA requires service of 85% of a sentence without parole in the event of conviction of a first or second degree "violent crime." N.J.S.A. 2C:43-7.2a.
The trial court sentenced defendant to 70 years' imprisonment and applied NERA, ordering that Manzie not be eligible for parole until he has served 59 years and 6 months of his sentence. The sentencing court also imposed the 30-year mandatory period of parole ineligibility required in the murder statute, N.J.S.A. 2C:11-3b, noting, however, that "the paramount provision of the 'No-Early-Release-Law' shall govern." The court dismissed the other counts in the indictment.
Manzie appeals and makes the following contentions:
THE LOWER COURT ERRED, FACTUALLY AND LEGALLY, IN DETERMINING AND WEIGHING THE AGGRAVATING AND MITIGATING FACTORS UNDER N.J.S.A. 2C:44-1.
THE LOWER COURT ERRED IN APPLYING THE NO EARLY RELEASE ACT, N.J.S.A. 2C:43-7.2, IN THE PRESENT MATTER SINCE THAT ACT DOES NOT APPLY TO MURDER UNDER N.J.S.A. 2C:11-3.
The first contention is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We perceive no basis in the record to interfere with the trial court's sentence of 70 years' imprisonment.
The difficult issue is whether NERA applies to murder. N.J.S.A. 2C:43-7.2a and d provide:
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 ...