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State v. Anderson

January 27, 2005

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
NEDLEY A. ANDERSON, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 01-08-0918-I.

Before Judges Stern, Axelrad and Wells.

The opinion of the court was delivered by: Stern, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 3, 2005

While the jury was deliberating during a trial in which defendant was charged with third-degree promoting obscene material to a minor, N.J.S.A. 2C:34-3b(2), defendant pled guilty to that charge and two counts of a separate indictment alleging fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b, and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. During the plea colloquy, the trial judge indicated that defendant's sentence exposure would be five years and three months in custody:

THE COURT: But I told your attorney that if you want to do that and you want to plead guilty, because you have no prior indictable convictions, what I would do is if I accept the plea, I would give you four years on this case that the jury has before it right now and on the second indictment, on the third degree, I'll give you four years, on the fourth degree, I'll give you fifteen months but the fifteen months will run consecutive to the four years. So you'll end up with five years and three months; do you understand that?

THE DEFENDANT: Yes, your Honor.

THE COURT: So the four will run concurrent to this four and the fifteen months will be consecutive for a total of five years and three months; do you understand that?

THE DEFENDANT: Yes, your Honor.

Defendant was subsequently sentenced to a term of fifteen months on the criminal sexual contact charge, to a consecutive four-year term on the endangering the welfare of a child count of the same indictment, and to a four-year term for the promoting obscene material charge on which defendant was being tried at the time of the plea, to be served concurrent to the fifteen-month sentence.*fn1 The trial judge stated at the time of the sentencing that the"total sentence here today is five years and 3 months in State Prison."*fn2

On defendant's appeal we concluded"that the sentence is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion." We added, however:

Pursuant to the agreement between the State and the Public Defender, as defendant has raised the constitutional argument of Blakely v. Washington, 524 U.S. ___, 124 S.Ct. 2531, ___ L.Ed. 2d ___ (2004), the matter is postponed until a later date for disposition after full briefing on a regular calendar. The Clerk of the Appellate Division shall designate the briefing schedule to be followed by the parties.

Defendant now argues that the"imposition of consecutive prison terms above the presumptive violated defendant's constitutional rights to trial by jury and due process of law."

We summarily reject defendant's contention that the imposition of consecutive sentences violates the principles of Blakely. See State v. Natale, 373 N.J. Super. 226, 238 (App. Div. 2004); State v. Abdullah, 372 N.J. Super. 252, ...


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