On appeal from the New Jersey Superior Court, Law Division, Cumberland County, Indictment Nos. 04-09-0952 and 05-06-0531.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn and Gilroy.
Following a jury trial, defendant was convicted under Cumberland County Indictment No. 04-09-0952 of second-degree sexual assault, N.J.S.A. 2C:14-2c(1) (Count One); fourth-degree sexual contact, N.J.S.A. 2C:14-3b (Count Two); third-degree criminal restraint, N.J.S.A. 2C:13-2 (Count Three); third-degree aggravated assault, N.J.S.A. 2C:12-1b(7) (Count Four); fourth-degree resisting arrest, N.J.S.A. 2C:29-2a (Count Five); and third-degree escape, N.J.S.A. 2C:29-5a (Count Six). On August 8, 2005, pursuant to a plea agreement, defendant pled guilty to Count Two of Indictment No. 05-06-0531, charging him with fourth-degree failure to register under Megan's Law, N.J.S.A. 2C:7-2d.
On October 21, 2005, defendant was sentenced on all convictions. On Indictment No. 04-09-0952, defendant was sentenced on Count One as a persistent offender to an extended term of eighteen years' imprisonment, subject to the 85% parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The conviction on Count Two was merged with Count One. Concurrent terms of four years, five years, fifteen months, and four years were imposed on the convictions on Counts Three, Four, Five, and Six, respectively. On Indictment No. 05-06-0531, Count One was dismissed, and defendant was sentenced to a term of nine months on Count Two, concurrent with the sentence imposed on Count One of Indictment No. 04-09-0952. The aggregate custodial sentence was eighteen years subject to the NERA. All appropriate fees and penalties were also imposed. Defendant appeals. We affirm the convictions; vacate the sentence imposed on Count I under Indictment No. 04-09-0952; and remand for re-sentencing on that count only.
On appeal, defendant argues:
THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO INSTRUCT THE JURY SUA SPONTE ON THE DEFENSE OF INTOXICATION (NOT RAISED BELOW).
THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY COMMENTS MADE BY THE PROSECUTOR IN THE OPENING STATEMENT AND IN THE SUMMATION (NOT RAISED BELOW).
THE EIGHTEEN (18) YEAR EXTENDED TERM BASE SENTENCE IMPOSED ON THE DEFENDANT'S CONVICTION FOR SEXUAL ASSAULT ON COUNT ONE OF INDICTMENT NO. 04-09-0952 WAS MANIFESTLY EXCESSIVE, REPRESENTED AN ABUSE OF THE TRIAL COURT'S SENTENCING DISCRETION, AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON*fn1 AND STATE V. NATALE.*fn2
A. THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING THE DEFENDANT TO AN EXTENDED TERM ...