On appeal from Superior Court of New Jersey, Law Division, Middlesex County, 01-09-1080.
Before Judges Wefing, Payne and C.S. Fisher.
The opinion of the court was delivered by: Payne, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 27, 2004
Defendant Orlando Colon appeals on constitutional, statutory and equitable double jeopardy grounds from his convictions, following the entry of conditional pleas of guilty, on charges of second-degree eluding, N.J.S.A. 2C:29-2b, second degree aggravated assault while eluding, N.J.S.A. 2C:12-1b(6), and third-degree theft by unlawful taking of an automobile, N.J.S.A. 2C:20-3. Additionally, he appeals from concurrent sentences imposed on both the eluding and aggravated assault convictions of seven years with three and one-half years of parole ineligibility, claiming that those sentences were excessive.
We find no legal or equitable bar to defendant's convictions. However, we find the sentence imposed on defendant's conviction for second-degree aggravated assault while eluding, N.J.S.A. 2C:12-1b(6), to have been illegal, since neither an eighty-five percent period of parole ineligibility nor a three-year period of parole supervision was imposed as required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Because a legal sentence would require defendant to spend a greater period of time in custody than he is presently sentenced to serve, we remand the matter to permit defendant to seek to renegotiate or to withdraw his plea, or for resentencing.
On July 30, 2001, defendant stole a Toyota Corolla that he found with the motor running and the keys in the ignition. Following a report of the theft, he was spotted by the police driving the car, was ordered to stop, failed to do so, and instead eluded the police officers who followed him. Defendant struck a bicyclist in the course of his ensuing flight, causing an occipital skull fracture. Following his arrest, defendant admitted to stealing a Shure transmitter and wireless microphone valued at $1,800, which were found in the trunk of the car.
Two narrative reports of the incident, prepared by Sergeant Steven Verdi, stated as follows:
Observed a silver Toyota Corolla traveling north on King St. matching a description of a stolen car which was being tracked by a representative of Lojack.... Vehicle was being operated by one male with no other occupants. Overhead lights and siren were activated in an attempt to pull vehicle over at which time vehicle went around other vehicles and continued, increasing speed in an apparent attempt to elude this officer. Suspect turned left off of King St. to proceed west onto Smith St.... As this officer turned onto Smith St., it was observed that there was a large amount of pedestrian and vehicular traffic further down Smith St. and the pursuit was immediately terminated and radioed in as such....
Suspect continued west bound on Smith St. driving recklessly weaving in and out of traffic. At this time, overhead lights and siren were shut off and pursuit was completely terminated. However this officer continued to follow in the direction of suspect in an attempt to observe his direction of travel. P.O. Harth was behind this officer following in vehicle 803 west on Smith St. When suspect was observed turning north on Maple St. against the one way, suspect was followed. However was approx. a half block ahead with vehicles in between and continued driving in an erratic manner. Headquarters was advised by radio of suspect's direction of travel. Suspect vehicle struck a male on a bicycle at the intersection of Maple St. and Fayette St. and continued westbound on Fayette St. This officer as well as P.O. Estrada who arrived on scene stopped to render aid to the bicyclist. Suspect crashed into a curb further west on Fayette St. where he was apprehended by P.O. Vargas and P.O. Harth.
Defendant was issued municipal court summonses for driving on the revoked list, N.J.S.A. 39:3-40, reckless driving, N.J.S.A. 39:4-96, traveling the wrong way on a one-way street, N.J.S.A. 39:4-85.1, and leaving the scene of an accident, N.J.S.A. 39:4-129(c). A citizen complaint was filed against him as the result of the theft of the radio components. Additionally, complaints were filed by the police charging the felonies of eluding, aggravated assault in violation of N.J.S.A. 2C:12-1(b)(1), theft of the Toyota, and receipt of the stolen radio. Defendant was unable to post bail, and remained in custody throughout the proceedings at issue.
On September 25, 2001, an indictment against defendant was filed that charged second-degree eluding, N.J.S.A. 2C:29-2b (count one), second-degree aggravated assault while eluding, N.J.S.A. 2C:12-1b(6) (count two), second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count three), fourth-degree assault by auto, N.J.S.A. 2C:12-1c (count four), third-degree theft of a motor vehicle by unlawful taking, N.J.S.A. 2C:20-3 (count five), and receipt of stolen property (the radio components), N.J.S.A. 2C:20-7 (count six).
On September 26, 2001, one day after the indictment against him had been filed, defendant was brought from jail to the municipal court, where he pled guilty to the charges pending there of driving on the revoked list, reckless driving, and traveling the wrong way on a one-way street, as well as to a charge of failing to report an accident, N.J.S.A. 39:4-130, as amended from leaving the scene of the accident. Despite the fact that the complaint alleging receipt of stolen property valued the property at $1,800 thereby setting forth a basis for a crime of the third degree, and the pendency in the Law Division of an indictment for third-degree receipt of stolen property, the court, without jurisdiction (see N.J.S.A. 2B:12- 19a), notice to the prosecutor or apparent authorization to do so*fn1 (see State v. Still, 330 N.J. Super. 50, 54-55 (App. Div.), certif. denied, 165 N.J. 490 (2000)) downgraded the crime to a fourth-degree one,*fn2 to which defendant also pled guilty. Defendant was not represented by counsel while in municipal court, and the record does not reflect the presence of a prosecutor. Additionally, no factual basis was adduced for any of the guilty pleas. Sentences were imposed, consisting of various fines and penalties, sixty days loss of driving privileges, and a sixty-day jail term on the charge of receipt of stolen property.
Close to the conclusion of the proceedings, the municipal judge acknowledged on the record that defendant was presently in custody, and he asked:"What are you being held on now?" Defendant responded:"Drugs and burglary." No support for that statement appears in the record on appeal. The prior court history summary contained in defendant's presentence investigation report does not reflect any pending burglary charges.*fn3 It does reflect an open bench warrant from the criminal court of Kings County issued on December 12, 2000 as the result of charges of criminal possession of a controlled dangerous substance. Defendant was serving a one-year term of probation for shoplifting at the time of the crimes at issue.
The prosecution against defendant in the Law Division continued. On May 24, 2002, the trial court denied defendant's motion to dismiss the charges against him in counts one, two, three, five, and six of the indictment on double jeopardy grounds, finding the elements of the crimes charged in the indictment to be different from those underlying the municipal matters, and thus not barred by the federal constitution under the"same elements" test established by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 303-04, 52 S.Ct. 180, 181-82, 76 L.Ed. 306, 309 (1932) and reaffirmed in United States v. Dixon, 509 U.S. 688, 703-12, 113 S.Ct. 2849, 2859-64, 125 L.Ed. 2d 556, 572-78 (1993). The trial court recognized that, prior to Dixon, the New Jersey Supreme Court had alternatively used a"same conduct" test that had been endorsed by the United States Supreme Court in a decision repudiated by Dixon. See Grady v. Corbin, 495 U.S. 508, 510, 110 S.Ct. 2084, 2087, 109 L.Ed. 2d 548, 557 (1990). The trial court also recognized that in State v. Capak, 271 N.J. Super. 397, 403-04 (App. Div.), certif. denied, 137 N.J. 164 (1994), we declined to find, in the absence of dispositive precedent to the contrary, that the"same conduct" test was no longer applicable to a determination of double jeopardy under the New Jersey constitution. Nonetheless, the trial court made no determination of whether that test had been met in the present case. While rejecting the applicability of double jeopardy to most of the indictment, the trial court did grant defendant's motion to dismiss count four of that indictment, charging fourth-degree assault by auto, a charge that the State conceded was barred by double jeopardy principles as the result of defendant's plea in municipal court to reckless driving. In an order entered on June 12, 2002, the trial court memorialized these determinations, vacated defendant's municipal court conviction and sentence on the complaint of receipt of stolen property, and vacated defendant's municipal court convictions and sentences on the other charges contained in the various summons to which he had pled guilty--a matter that the court declared at the motion hearing to be dictated by considerations of fairness.
On April 4, 2003, defendant entered conditional pleas of guilty before a different Law Division judge to count one of the indictment (eluding), two (aggravated assault while eluding) and five (theft by unlawful taking of a motor vehicle). After establishing that he had stolen the car as a means to go home and that he ignored police attempts to stop him, defendant gave the following factual basis for his pleas:
[DEFENSE COUNSEL] FETKY: You drove away; correct?
MR. FETKY: How fast were you going?
THE DEFENDANT: The car had a flat tire.
MR. FETKY: How fast were you going?
THE DEFENDANT: About like 20, 25. 20 to 25 miles an hour.
MR. FETKY: Did you go through any stop signs? Did you run any red lights?
MR. FETKY: Were you driving recklessly?
MR. FETKY: Did there come a point in time when you came in contact with a man?
THE COURT: Wait a minute. How were you driving recklessly?
THE DEFENDANT: I was driving on the flat tire, and I was ...