On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 3705-10-98.
Before Judges Skillman and Lesemann.
The opinion of the court was delivered by: Lesemann, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant was indicted for first degree armed robbery, N.J.S.A. 2C:15-1, together with five other charges for allegedly employing a knife to force his way into a home and rob its occupants. He pleaded guilty pursuant to an agreement by which the first degree armed robbery charge was to be reduced to second degree robbery, the other charges were to be dismissed, and he would be sentenced to not more than five years in prison. However, based on defendant's use of the knife during the robbery, the plea agreement provided that defendant would also be subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant now appeals from the sentence imposed pursuant to that agreement, after the trial court had denied his motion to withdraw his plea.*fn1 He submits three arguments.
First, defendant says that when he entered the plea agreement, he did not understand that he would be subject to NERA; second, he says NERA cannot lawfully be applied to his sentence; and third, he claims that the attorney representing him during the plea proceeding was guilty of a conflict of interest because that attorney and another attorney representing a co-defendant were employed by the same public defender office. We find no merit in any of the arguments, and thus we affirm.
Initially, we note that defendant does not ask us to set aside his plea agreement and permit him to go to trial. That trial, of course, would be on a charge of first degree armed robbery, with exposure to a possible ten to twenty year prison sentence, N.J.S.A. 2C:43-6a(1), including possible NERA application as well. Rather, defendant makes the extraordinary request that we enforce the plea agreement selectively. He asks that we simply delete the NERA aspect of the sentence and require the State (and the trial court) to accept those portions of the agreement which defendant now finds acceptable: a reduction to second degree robbery and a maximum sentence of five years imprisonment. We see no rational basis why defendant should be entitled to that relief, even if we were to conclude that there is some reason to set aside the plea agreement. Were defendant to prevail in his claim that the plea agreement was in some way improper or invalid, the most he would obtain would be an order setting aside the plea agreement and giving him the "right" to proceed to trial on a charge of first degree robbery. Since defense counsel advised at oral argument that, given the time defendant has already spent in prison, he would not accept that alternative but would rather simply complete his present sentence, it is clear that on that basis alone, defendant's appeal must be rejected.
Beyond that, however, we find no merit in the appeal. In accepting the plea, Judge Rosenzweig was meticulous in ascertaining that defendant clearly understood that he would be subject to NERA and that he would be required to serve eighty-five percent of the five year sentence to be imposed upon him. To be sure of that understanding, she even used specific time references to emphasize and clarify the point:
(THE COURT): Do you understand that in return for that plea of guilty to that [second degree robbery] and in return for that particular factual statement you're going to have to serve 85 percent of the five-year sentence without parole eligibility?
Q. Which would mean four years and three months approximately?
A. Including my time served here, correct?
Q. Correct. The time you've been held on this charge will be applied towards that. If you served three months already, ...