On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 02-09-1236.
The opinion of the court was delivered by: R. B. Coleman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 12, 2005
Before Judges Kestin, R. B. Coleman and Seltzer.
Defendant, Heriberto Soto, appeals from his sentence for fourth degree aggravated assault, N.J.S.A. 2C:12-1b(4). Defendant was sentenced, pursuant to a negotiated plea agreement respecting the charges in Passaic County Indictment No. 02-09-1236, to incarceration in prison for eighteen months, with an eighteen-month mandatory minimum term to be served consecutive to the sentence on Passaic County Indictment No. 02-03-0279, which defendant was serving at the time. Defendant has also challenged his sentence, following a plea of guilty to two counts of a seven-count indictment in Passaic County, Indictment No. 02-03-0279; that appeal was removed from the sentencing oral argument calendar in order that it could be fully briefed.*fn1 It was listed for submission on the same date as this appeal. We have elected to address the issues raised in that matter in a separate opinion.
On this appeal defendant makes the following argument:
POINT ONE: THE IMPOSITION OF A MAXIMUM BASE TERM SENTENCE WITH A MAXIMUM BASE TERM PAROLE DISQUALIFER OF 18 MONTHS TO BE SERVED CONSECUTIVELY TO THE SENTENCE DEFENDANT WAS THEN SERVING ON ANOTHER INDICTMENT WAS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT SUPPORTED BY THE RECORD BELOW.
We agree with defendant that the eighteen-month period of parole ineligibility exceeds the statutory authorization and is illegal. We remand for re-sentencing on that issue only.
On March 4, 2002, defendant was indicted under Passaic County Indictment No. 02-09-1236, which charged him in ten counts as follows: three counts of first degree robbery, N.J.S.A. 2C:15-1 (counts one, two and three); second degree possession of handguns with the intent to use them unlawfully against others, N.J.S.A. 2C:39-4a (count four); third degree possession of handguns without having obtained a permit to carry the same, N.J.S.A. 2C:39-5b (count five); three counts of fourth degree aggravated assault by knowingly pointing a firearm at another under circumstances manifesting extreme indifference to the value of human life, N.J.S.A. 2C:12-1b(4) (counts six, seven and eight); third degree theft by receiving stolen property, N.J.S.A. 2C:20-7 (count nine); and fourth degree resisting arrest, N.J.S.A. 2C:29-2a(1) (count ten).
On June 30, 2003, defendant pled guilty to a single count of the indictment, count six, charging fourth degree aggravated assault. Pursuant to the plea agreement, the State agreed to recommend the maximum base sentence of eighteen months for the offense, with a period of parole ineligibility for the full eighteen months, and the dismissal of all remaining charges.
The State's recommendation also contemplated that the sentence would be served consecutively to the aggregate eight-year sentence defendant had already started to serve for third degree possession of a controlled dangerous substance (CDS) with the intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7, and possession of a firearm while in the course of committing a narcotics offense, N.J.S.A. 2C:39-4.1.
In furtherance of the plea agreement, defendant provided a factual basis of his guilt. He testified that he entered the victim's laundromat on March 4, 2002, took out a handgun, and pointed it at the victim's leg. Defendant also acknowledged the presence and aid of his accomplice in accordance with the plea agreement. The trial judge determined that defendant had the advice of competent counsel; that he had entered the guilty plea freely and voluntarily; and that he had adequately admitted a factual basis of the conviction of fourth degree aggravated assault, N.J.S.A. 2C:12-1b(4).
At the sentencing hearing on August 15, 2003, the State, as it had agreed, moved to dismiss the remaining nine charges against defendant and recommended the eighteen-month sentence, subject to the full eighteen-month parole disqualifier, to be served consecutively to the eight-year aggregate sentence defendant was then serving. The judge imposed sentence upon defendant in accordance with the State's recommendation and the parties' agreement. The judge found that the nature of the crime committed and the role of the defendant in this fourth degree offense was very serious. He noted that defendant had bound with duct tape three individuals, including the victim at whom he admitted he pointed the handgun, and he had terrorized them. In the judge's estimation, that incident would live with the victims for the rest of their lives. For those reasons, as well as ...