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State v. Peterson

September 12, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LAWRENCE PETERSON, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 2094-5-83.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 29, 2007

Before Judges A.A. Rodríguez and Parrillo.

Defendant Lawrence Peterson appeals from the November 13, 2006 order of the Law Division denying his Rule 3:21-10(b) motion for a change of custodial status in order to be admitted into a drug and alcohol rehabilitation program. We affirm.

By way of background, on September 30, 1983, defendant was convicted, following a jury trial, of first-degree murder, N.J.S.A. 2C:11-3a(1) or (2); third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4d; and fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5d. He was sentenced on November 9, 1983 to a term of thirty years without parole eligibility on the murder conviction and a concurrent five-year term for the possession of the weapon for an unlawful purpose, his conviction of unlawful possession of the knife, N.J.S.A. 2C:39-5d, having been merged into the violation of N.J.S.A. 2C:39-4d.

We affirmed defendant's conviction and the Supreme Court denied his petition for certification. State v. Peterson, 105 N.J. 513 (1986). Subsequently, defendant filed three successive petitions for post-conviction relief (PCR), all of which were denied, the latest denial being affirmed on appeal on August 13, 2002.

On October 18, 2006, defendant filed a motion, pursuant to Rule 3:21-10(b), for a change of custodial status in order to be admitted into a drug and alcohol rehabilitation program. On November 13, 2006, the Law Division denied defendant's application because he had not completed the statutorily mandated thirty-year minimum term. In its letter opinion, the court concluded:

Rule 3:21-10(b) does not allow a court to change a defendant's custodial status until he completes all mandatory portions of his sentence as established by statute. State v. Mendel, 212 N.J. Super. 110, 113 (App. Div. 1986); see also State v. Brown, 384 N.J. Super. 191, 194-95 (App. Div. 2006) ("when a parole ineligibility minimum term is required by statute, a court has no jurisdiction to consider a R. 3:21-10(b) application"). As indicated by your Judgment of Conviction, you were sentenced to a mandatory term of thirty years custody with a thirty year parole ineligibility period under N.J.S.A. 2C:11-3(b)(1). Therefore, this court does not have the authority to alter your sentence until the mandatory portion of your sentence has been served.

On appeal, defendant raises the following issues:

I. THE COURT HAS JURISDICTION TO CONSIDER APPELLANT['S] MOTION UNDER RULE 3:21-10(B) TO A DRUG TREATMENT PROGRAM WHEN A PAROLE INELIGIBILITY IMPOSED AS A MATTER OF JUDICIAL DISCRETION.

II. DENIAL APPELLANT CONSIDERATION INTO A DRUG TREATMENT PROGRAM IS A VIOLATION OF HIS DUE PROCESS RIGHTS.

III. APPELLANT WAS ENTITLED TO HAVE ASSIGNMENT OF COUNSEL TO REVIEW MOTION TO ADVANCE APPELLANT['S] ARGUMENTS.

We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel and defendant pro se, and we are satisfied that none of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We therefore affirm substantially for the reasons stated by the motion ...


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