On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 98-03-0264.
Before Judges Skillman, Conley and Wecker.
The opinion of the court was delivered by: Conley, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 14, 2001
Following the first day of a jury trial on charges of first degree armed robbery, N.J.S.A. 2C:15-1, second degree attempt to commit burglary while armed with a deadly weapon, N.J.S.A. 2C:18- 2a(1) and N.J.S.A. 2C:5-1, third degree aggravated assault, N.J.S.A. 2C:12-1b(4), second degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a, and third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, defendant pled guilty to second degree attempted burglary while armed with a firearm, N.J.S.A. 2C:18-2a(1) and N.J.S.A. 2C:5-1.
The charges arose when defendant, who prior thereto had, save for a minor juvenile encounter with the law, an essentially unblemished record and a stable environment in which criminal conduct would appear to be an aberration, went to a neighborhood store late one night with a BB gun intending to "commit a theft." Apparently he was familiar with the victim/owner.*fn1 It was after the victim's testimony that the State offered a plea to the second degree attempted burglary with a five-year term. The sentence was to be imposed under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, with the mandatory eighty-five percent disqualifier and a five year mandatory probationary term upon release.*fn2
Defendant accepted the offer and pled guilty to the second degree attempted burglary. Although the transcript of the plea proceeding makes some reference to the prior day's testimony by the victim, we have not been provided with that testimony, neither was it made part of the sentencing proceeding during which, ordinarily, the NERA hearing required by N.J.S.A. 2C:43-7.2e is to occur.*fn3 See State v. Staten, 327 N.J. Super. 349, 356-57 (App. Div.), certif. denied, 164 N.J. 561 (2000); State v. Meyer, 327 N.J. Super. 50, 55 (App. Div.), certif. denied, 164 N.J. 191 (2000); State v. Mosley, 335 N.J. Super. 144, 153 (App. Div. 2000).
Ultimately, defendant was sentenced to a five-year term with an eighty-five percent disqualifier under NERA. On appeal, defendant contends:
THE TRIAL COURT ERRED IN REFUSING TO DOWNGRADE THE DEFENDANT'S OFFENSE TO THE THIRD DEGREE FOR SENTENCING PURPOSES.
NEW JERSEY'S "NO EARLY RELEASE ACT" VIOLATES STATE AND FEDERAL CONSTITUTIONAL PROHIBITIONS AGAINST CRUEL AND UNUSUAL PUNISHMENT. U.S. CONST., AMENDS. VIII, XIV; N.J. CONST. (1947), ART. I, PAR. 12.
We have considered these contentions in light of the record and existing law. While we agree that the sentencing judge's finding of a risk of recurrence is not supported by the record, we, nonetheless, are satisfied that the five-year term is consistent with the applicable sentencing guidelines, does not offend our judicial conscience, and that the rejection of defendant's request for a downgrade to a third degree sentence is not violative of State v. Megargel, 143 N.J. 484 (1996), or the applicable statutory criteria. Defendant's constitutional contention has been rejected by our Supreme Court. State v. Johnson, ___ N.J. ___ (2001). See also State v. Austin, 335 N.J. Super. 486, 494 (App. Div. 2000); State v. Rumblin, 326 N.J. Super. 296, 303 (App. Div. 1999), aff'd, ___ N.J. ___ (2001); State v. Newman, 325 N.J. Super. 556, 561-63 (App. Div. 1999), certif. denied, 163 N.J. 396 (2000).
That would seem to dispose of the appeal. But we cannot ignore what seems to us to be an evident issue as to the legality of a NERA sentence upon the crime to which defendant pled guilty. The factual basis for the plea was the following:
THE COURT: Sir, did you commit the offense to which you're ...