On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 928-03-02.
The opinion of the court was delivered by: Landau, J.A.D. (Retired and temporarily assigned on recall)
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Newman, R. B. Coleman and Landau.
Charged with second degree aggravated assault (N.J.S.A. 2C:12-1b(1)) defendant Carlos Moore entered a retraxit plea of guilty on July 18, 2002, under a plea agreement that provided for a five year term of imprisonment subject to a mandatory eighty five percent parole ineligibility term under the No Early Release Act (NERA). The term was to be consecutive to a twelve-year sentence of imprisonment defendant was then serving.
The charge arose out of defendant's assault upon a corrections officer committed on December 24, 2001 at the Essex County Jail where he was confined while awaiting sentence on seven indictments to which he had entered guilty pleas.
In fixing sentence on September 9, 2002, the judge imposed the bargained-for five-year term subject to NERA parole ineligibility, but elected to make that term concurrent with the period of incarceration defendant was serving. A three-year period of parole was also imposed under NERA.
The State moved for reconsideration, contending that the sentence was illegal because defendant's assault upon a corrections officer should have rendered him subject to the mandate of N.J.S.A. 2C:44-5i which provides:
Any term of imprisonment imposed on an inmate of a State or county correctional facility for an assault on a Department of Corrections employee, an employee of a county correctional facility, an employee of a State juvenile facility or a county juvenile detention facility, a county sheriff's department employee or any State, county or municipal law enforcement officer while in the performance of his duties shall run consecutively to any term of imprisonment currently being served and to any other term imposed for any other offense committed at the time of the assault.
After hearing argument, the judge granted the State's motion, but permitted defendant to withdraw his guilty plea.
Another plea agreement was negotiated shortly before trial was to commence. With the acquiescence of the State, it was agreed that defendant would plead to the second degree offense, but that he would be sentenced as for a third degree offense, to a term of three years, subject to the eighty five percent NERA parole ineligibility condition, said term to run consecutively to the sentences already being served.
On May 5, 2003, in accordance with the plea bargain, the defendant was sentenced to a custodial term of three years, subject to the NERA conditions, with the provision that it be consecutive to the existing sentences. Appropriate fines and penalties were imposed.
Defendant appeals, contending that N.J.S.A. 2C:44-5i should not be deemed to control defendant's sentence, and that the original ...