On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 1427-05-99.
Before Judges Stern, Coburn and Wecker.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On remand from the Supreme Court, and after the State declined to try defendant on the No Early Release Act (NERA) predicates for second-degree aggravated assault, defendant was sentenced for second-degree aggravated assault to a nine-year term with four and one-half years to be served before parole eligibility.*fn1 He also received concurrent five-year sentences for third-degree terroristic threats and third-degree criminal restraint, to be served consecutively to the sentence for aggravated assault. The aggregate sentence therefore is fourteen years with four and one-half years to be served before parole eligibility.
Defendant appeals and argues that the sentence is unconstitutional under Blakely v. Washington, 542 U.S. __, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004). Specifically, he contends that"the sentence imposed on the defendant is unconstitutional in that it exceeds the maximum sentence authorized by the jury's verdict."*fn2
The background relating to the trial is fully set out in State v. Natale, 348 N.J. Super. 625 (App. Div. 2002), aff'd o.b., and remanded, 178 N.J. 51 (2002). In its opinion, the Supreme Court ordered that on remand the State could elect to try the NERA predicates to a jury or have defendant resentenced without imposition of the NERA ineligibility term. See Natale, supra, 178 N.J. at 54. On the remand, the State elected not to try the NERA issue, and the trial judge imposed a new sentence without the NERA component. The trial judge concluded that the aggravating factors embodied in N.J.S.A. 2C:44-1a(1) and (2) applied because of the length and duration of the beating and its impact on the victim. The judge also concluded that the aggravating factors under N.J.S.A. 2C:44-1a (3) and (9) were applicable because similar beatings occurred in the past. The judge additionally determined that the mitigating factor N.J.S.A. 2C:44-1b(7) applied because the defendant had no criminal record, although in the context of finding the aggravating factors the judge concluded, as already stated, that there had been prior beatings. The reasons for the sentence were comprehensively embodied in the judgment of conviction, as follows:
With this indictable conviction, the Court does find aggravating factors:
(1) The nature and circumstances of the offense and the role of the actor therein, including whether or not the crime was committed in an especially heinous, cruel, or depraved manner.
The nature and circumstances of the offense and whether it was committed in an especially heinous, cruel, or depraved manner clearly applies in this case and this factor is weighed heavily.
The Court agrees with the State's characterization of the defendant's conduct:
The assault in the present case was both brutal and prolonged, and evidenced a grim determination on the part of the defendant to inflict maximum damage to the victim by any available means. The assault continued for almost an hour. During that time the defendant punched, choked, and kicked the victim, who was desperately pleading for him to stop. He dragged her by her hair, smashed her head re- peatedly into walls, onto the ground, into a wooden pillar. He struck her in the head with any heavy object at hand and repeatedly slammed a door closed on her head.
The relentlessness and brutality of the attack is most clearly demonstrated by defendant's determination to pursue the victim and continue the beating even as she sought refuge in the apartment of her neighbor Gary Smith, who unsuccess- fully attempted to persuade defendant to let the victim go. Moreover, in addition to the physical damage defendant inflicted, he terrorized the victim and humiliated her by ripping off her clothing during the assault leaving her half naked in the bitter cold.
To continue to assault the victim even after a neighbor tried to intervene shows the purposeful nature of the defendant's conduct and his unrelenting determination to injure and humiliate his victim. For him to have continued the beating even after a neighbor knocked on the door shows that the offense was cruel and ...