On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 03-06-0800.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Lisa.
Defendant was indicted on three counts of attempted aggravated sexual assault, in violation of N.J.S.A. 2C:5-1, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:14-2(a)(3); three counts of attempted sexual assault, in violation of N.J.S.A. 2C:5-1, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:14-2(c)(1); and three counts of attempted burglary, in violation of N.J.S.A. 2C:5-1, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:18-2. Defendant filed a motion to suppress the evidence against him, which the trial court denied. Defendant entered into a plea bargain under which he agreed to plead guilty to the three attempted sexual assault charges and the State agreed to recommend that he be sentenced to five year terms of imprisonment on each of those charges, two of which would be consecutive. The State also agreed to dismiss the other charges.
The Adult Diagnostic and Treatment Center (ADTC) submitted a report which found that defendant is a repetitive and compulsive sex offender who was eligible for sentencing under the Sex Offender Act, N.J.S.A. 2C:47-1 to 10. Defendant did not contest this finding.
The trial judge sentenced defendant in conformity with the plea bargain to concurrent five-year terms of imprisonment for two attempted sexual assaults and a consecutive five-year term for the other attempted sexual assault, for an aggregate term of ten years. The judge ordered defendant to begin service of this sentence in state prison and to be transferred to the ADTC when five years remain to be served. The judge also determined that defendant's convictions are subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, under which defendant must serve 85% of his sentence before he becomes eligible for parole, and Megan's Law, N.J.S.A. 2C:7-1 to -19. The judge dismissed the other counts of the indictment in accordance with the plea agreement.
However, shortly after orally pronouncing sentence, the trial judge returned to the bench, and after directing that defendant and defense counsel be brought back to the courtroom and having the prosecutor place on the record an offensive comment that defendant allegedly made to one of the victims after sentencing, the judge vacated the sentence, reinstated all counts of the indictment, and directed that the case be placed back on the trial calendar. We granted defendant's motion for leave to appeal, reversed the order vacating defendant's sentence, and remanded for entry of a judgment of conviction in conformity with the orally pronounced sentence. State v. Gilberti, 373 N.J. Super. 1 (App. Div. 2004).
Defendant now appeals from the judgment of conviction entered in accordance with this court's prior opinion. Defendant's only argument is that the trial court erred in denying his motion to suppress the evidence obtained in a search of his house because the application for the warrant pursuant to which the search was conducted was based solely on hearsay.
Defendant's argument is clearly without merit. R. 2:11-3(e)(2); see State v. Zutic, 155 N.J. 103, 110 (1998); State v. Kasabucki, 52 N.J. 110, 116-17 (1968).
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