On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 01-04-0361-I, 01-06-0667-I, 02-11-1388-I, 03-01-0024-A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2007
Before Judges Winkelstein and LeWinn.
On June 28, 2001, a Passaic County Grand Jury issued Indictment No. 01-06-0667, which charged defendant, Jesus Martinez, with the following: third-degree terroristic threats against Maria Ortiz and Jacqueline Martinez, N.J.S.A. 2C:12-3a and N.J.S.A. 2C:12-3b (count one); fourth-degree contempt of court by violating a temporary restraining order, N.J.S.A. 2C:29-9b (count two); third-degree terroristic threats against Sonaly Diaz and Maria Ortiz, N.J.S.A. 2C:12-3a and N.J.S.A. 2C:12-3b (count three); fourth-degree contempt of court by violating a temporary restraining order, N.J.S.A. 2C:29-9b (count four); third-degree terroristic threats against Maria Ortiz, N.J.S.A. 2C:12-3a and N.J.S.A. 2C:12-3b (count five); third-degree possession of a weapon, a sharp instrument, for an unlawful purpose, N.J.S.A. 2C:39-4d (count six); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count seven).
Defendant was tried on those charges from October 8 through October 10, 2002. The court granted defendant's motion for acquittal on the portion of count one pertaining to terroristic threats against Martinez and on the portion of count three pertaining to terroristic threats against Ortiz. The jury convicted defendant of count three, terroristic threats against Diaz, and acquitted him of the remaining charges. The court dismissed the contempt charges upon the prosecutor's motion in counts two and four.
On January 10, 2003, before defendant was sentenced on those convictions, he entered a consolidated plea to other outstanding charges. Indictment No. 01-04-0361 charged him with first-degree robbery (counts one and two); second-degree burglary (count three); and third-degree possession of a weapon for an unlawful purpose (count four). Indictment No. 02-11-1388 charged him with first-degree attempted murder (count one); second-degree aggravated assault (count two); and possession of a weapon for an unlawful purpose (count three). Accusation No. 03-01-0024 charged defendant with second-degree sexual assault. Pursuant to the plea agreement, he pleaded guilty to robbery, count two of Indictment No. 01-04-0361, aggravated assault, count two of Indictment No. 02-11-1388, and sexual assault, Accusation No. 03-01-0024.
The plea agreement called for a prison term of eighteen years with an eighty-five percent period of parole ineligibility for the first-degree robbery conviction, and lesser, concurrent terms on the remaining charges.*fn1 As part of the plea agreement, defendant would receive a concurrent five-year prison term, with two and one-half years of parole ineligibility, on the third-degree terroristic threat conviction. The State agreed to dismiss all remaining charges.
At the sentencing hearing on April 10, 2003, the judge imposed sentences in accordance with the plea agreement. Consequently, defendant's total sentence was eighteen years with an eighty-five percent period of parole ineligibility.
On appeal, defendant raises four legal arguments with regard to the jury trial and attacks the length of his sentence. Specifically, he raises the following points:
POINT I - POLICE OFFICER IURATO'S TESTIMONY THAT HE SPOKE WITH "MR. MARTINEZ" ON THE TELEPHONE CONSTITUTED AN IMPROPER "NET OPINION" AND OFFICER IURATO'S TESTIMONY CONCERNING THE SUBSTANCE OF THE STATEMENT PURPORTEDLY MADE BY THE DEFENDANT CONSTITUTED PLAIN ERROR (NOT RAISED BELOW). POINT II - TESTIMONY THAT THE DEFENDANT WAS IN JAIL CONSTITUTES PLAIN ERROR (NOT RAISED BELOW).
POINT III - THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY COMMENTS MADE BY THE PROSECUTOR IN SUMMATION (NOT RAISED BELOW). POINT IV - THE TRIAL COURT COMMITTED PLAIN ERROR IN ITS JURY CHARGE (NOT RAISED BELOW). POINT V - IMPOSITION OF BASE CUSTODIAL SENTENCES THAT EXCEEDED THE THEN-EXISTING PRESUMPTIVE SENTENCE OF 15 YEARS FOR A CRIME OF THE FIRST DEGREE, 7 YEARS FOR A CRIME OF THE SECOND DEGREE, AND 4 YEARS FOR A CRIME OF THE THIRD DEGREE WAS MANIFESTLY EXCESSIVE AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON AND STATE V. NATALE.
We have carefully considered defendant's arguments in light of the record and applicable law. We agree with defendant's argument in point three that his right to a fair trial was prejudiced by comments made by the prosecutor in summation. We therefore reverse defendant's conviction for terroristic threats under Indictment No. 01-06-0667. Given that determination, points two and four of defendant's brief are moot, as those issues may not arise on retrial. We do, however, address point one of defendant's brief, and in so doing, find no merit to defendant's argument. We also find no merit to defendant's argument in point five of his brief, that the custodial terms imposed by the court violated defendant's constitutional rights under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004) or State v. Natale, 184 N.J. 458 (2005), or are otherwise excessive. Nevertheless, because the plea agreement included the proposed sentence for the terroristic threats conviction, we remand for resentencing.
We begin with the evidence elicited during defendant's trial under Indictment No. 01-06-0667. Sonaly Diaz testified that on December 19, 2000, she was in her apartment on Park Avenue in Paterson with her son, her friend Maria Ortiz, Ortiz's children, and defendant's niece, Jacqueline Martinez. Diaz had dated defendant for two months, but the two were no longer together.
On that date, she heard loud banging on the door. Martinez held the door while Ortiz took the three children into the bathroom. Diaz dialed 911. She "knew it was [defendant]" at the door; she was ...