On appeal from Superior Court of New Jersey, Law Division, Camden County, Ind. No. 99-05-1434.
The opinion of the court was delivered by: Graves, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Coburn and Graves.
Defendant, Jonathan Crawford, appeals from an order entered on September 22, 2003, that required him "to submit to having a blood sample drawn, or other biological sample collected, for purposes of DNA testing." The order was entered as a result of the "DNA Database and Databank Act of 1994" (the DNA Act), N.J.S.A. 53:1-20.17 to -28, which was amended, effective September 22, 2003, to require that every person convicted of a crime who is "serving a sentence of imprisonment, probation, parole or other form of supervision as a result of the crime . . . shall provide a DNA sample before termination of imprisonment, probation, parole, supervision or confinement, as the case may be," N.J.S.A. 53:1-20.20(g). We reverse because we are convinced that defendant was not serving a legal sentence on September 22, 2003.
On November 24, 1999, a Camden County Grand Jury charged defendant in Indictment Number 3587-11-99 with having committed the following crimes: second-degree endangering the welfare of a child contrary to N.J.S.A. 2C:24-4(a) (Counts One, Three, and Five); second-degree sexual assault contrary to N.J.S.A. 2C:14-2(b) (Count Two); and fourth-degree criminal sexual contact contrary to N.J.S.A. 2C:14-3(b) (Count Four). In addition, as a result of his 1992 conviction for endangering the welfare of a child, defendant was subject to the requirements of Megan's Law, N.J.S.A. 2C:7-1 to -19, and he was charged with three violations of that law in two separate indictments. Camden County Indictment Number 1116-04-00 charged defendant with fourth-degree failure to register as a sex offender contrary to N.J.S.A. 2C:7-2(a) (Count One). Camden County Indictment Number 1434-5-99 charged defendant with fourth-degree failure to notify of change of address contrary to N.J.S.A. 2C:7-2(d) (Count One), and fourth-degree failure to verify address contrary to N.J.S.A. 2C:7-2(e) (Count Two).
On October 27, 2000, defendant entered guilty pleas to three separate fourth-degree crimes: (1) cruelty or neglect of a child contrary to N.J.S.A. 9:6-3 (Accusation Number 3378-10-00); (2) failure to register as a sex offender contrary to N.J.S.A. 2C:7-2(a) (Count One of Indictment Number 1116-04-00); and (3) failure to notify of change of address contrary to N.J.S.A. 2C:7-2(d) (Count One of Indictment Number 1434-5-99). In return, the State agreed to dismiss the remaining charges and recommended an eighteen-month custodial term for the cruelty or neglect conviction, and five years of probation on each of the two Megan's Law convictions, concurrent to each other, but consecutive to the prison term. The plea papers also reflect that the parties agreed to the following:
Defendant to obtain forensic evaluation from Ken Singer and register under N.J.S.A. 2C:7-2 prior to sentencing. Defendant to be supervised with same manner and frequency as a sex offender by Camden County Probation Department. State does not oppose defendant relocating out of state while on probation, but will report to Camden unless and until transfer of probation authorized.
Consistent with the plea agreement, defendant was sentenced on January 5, 2001, "to the custody of the Commissioner of the Department of Corrections" to serve an eighteen-month prison term for the cruelty or neglect of a child conviction, and he also received five years of probation for each of the two Megan's Law convictions. The probationary terms were concurrent with each other, but consecutive to the eighteen-month period of imprisonment. As a special condition of probation, the sentencing court ordered that "[u]pon 1 week from release from prison defendant must undergo psychological/psychiatric evaluation and treatment if necessary."
After completing his eighteen-month prison term and while on probation, defendant returned to court on October 16, 2002, for resentencing. Defendant's attorney explained the circumstances to the court as follows:
Your Honor, in this particular matter the court was not the initial court with regard to these two indictments. My client received -- plead guilty to and received a sentence of State Prison on a third indictment followed by two concurrent but consecutive probationary terms on those indictments.
The State and I agree that that is an improper sentence. You're not supposed to get a consecutive Probation sentence to a State Prison sentence. We have discussed this matter at great length. Before Your Honor is a joint application to have the [defendant] resentenced exactly under the terms imposed. My client will not be on ...