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State v. Rosado

SUPREME COURT OF NEW JERSEY


January 26, 2005

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
CARLOS M. ROSADO, DEFENDANT-APPELLANT.

On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

[NOTE: This is a companion case to State v. Johnson, A-7-04, also filed today.]

The issue in this appeal is whether Carlos M. Rosado's plea agreement must be set aside because he was not informed about a five-year period of extended parole supervision under the No Early Release Act, N.J.S.A. 2C:

43-7.2 (NERA).

While driving under the influence of alcohol, Rosado ran a red light, hit another vehicle and killed its driver, nineteen-year old Michael Albano. Rosado pled guilty to first-degree death by auto within 1,000 feet of school property and driving with a revoked license. The prosecutor recommended a twelve-year term of imprisonment on the death-by-auto charge, a concurrent term of imprisonment of 180-days on the driving with a revoked license charge, and a one-year suspension of defendant's driver's license. The trial court sentenced defendant accordingly. Rosado was not informed about the mandatory period of parole supervision required by NERA.

HELD: Consistent with our holding in State v. Johnson, ___ N.J. ___ (2005), decided today, Rosado is entitled to seek the vacation of his plea.

1. The terms of the No Early Release Act, N.J.S.A. 2C: 43-7.2 (NERA), apply to the death-by-auto charge. N.J.S.A. 2C: 43-7.2d(3). Accordingly, defendant was subject to a minimum period of parole ineligibility of eighty-five percent of the sentence imposed and to a mandatory five-year period of parole supervision. N.J.S.A. 2C: 43-7.2c. (p. 2)

The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law Division for further proceedings consistent with this opinion.

CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ZAZZALI, ALBIN, WALLACE and RIVERA-SOTO join in this opinion.

Per curiam.

Argued November 8, 2004

While driving under the influence of alcohol, defendant Carlos Rosado ran a red light, hit another vehicle and killed its driver, nineteen-year old Michael Albano. Defendant was charged with first-degree death by auto within 1,000 feet of school property and driving with a revoked license. Defendant pled guilty to both charges, and in exchange the prosecutor recommended a twelve-year term of imprisonment on the death-by auto charge, a concurrent term of imprisonment of 180-days on the driving with a revoked license charge, and a one-year suspension of defendant's driver's license. The trial court accepted the State's recommendations, and sentenced defendant accordingly.

The terms of the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA), apply to the death-by-auto charge. N.J.S.A. 2C:43-7.2d(3). Accordingly, defendant was subject to a minimum period of parole ineligibility of eighty-five percent of the sentence imposed and to a mandatory five-year period of parole supervision. N.J.S.A. 2C:43-7.2c. As in State v. Johnson, __ N.J. __ (2005), decided today, defendant was not informed about the mandatory period of parole supervision required by NERA. Consistent with our holding in Johnson, we reverse and remand for a determination as to whether defendant's mistaken belief regarding the penal consequences of his sentence was a material factor in his decision to plead guilty, entitling defendant to relief under Rule 3:21-1.

CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ZAZZALI, ALBIN, WALLACE, and RIVERA-SOTO join in this opinion.

Chief Justice Poritz PRESIDING

20050126

© 1992-2005 VersusLaw Inc.



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