On appeal from the Superior Court of New Jersey, Law Division, Hudson County, 00-02-0189, 0011-2173.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 9, 2007
Before Judges Lintner and Parrillo.
On May 16, 2001, defendant, Caron Harris, entered into a plea agreement, pleading guilty to first-degree robbery, N.J.S.A. 2C:15-1, as charged in the first count of Hudson County Indictment No. 00-02-0189, and third-degree aggravated assault, N.J.S.A. 2C:12-1b(7), as charged in the second count of Hudson County Indictment No. 00-11-2173. The plea agreement recommended a seven-year sentence subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and four-year concurrent sentences on the aggravated assault and violations of probation. The remaining counts of the two indictments were to be dismissed.
On October 12, 2001, the judge sentenced defendant on the first-degree robbery plea to a term of six years with an eighty- five percent period of parole ineligibility, a concurrent four- year term on the aggravated assault, and two four-year terms on the two violations of probation. The violations of probation terms were run concurrent with each other and concurrent with the aggravated assault and robbery terms. On January 29, 2003, defendant's judgment of conviction was amended to include a NERA five-year period of parole supervision.
Defendant filed a notice of appeal on October 12, 2004. On November 2, 2004, we granted defendant's motion to file his appeal as within time, based upon defendant's assertion that counsel failed to advise him of the time limitations on his right to appeal. See R. 3:21-4(h). On March 20, 2006, defendant was released from prison. On appeal, defendant raises the following point:
THE PLAIN LANGUAGE OF THE NO EARLY RELEASE ACT INDICATES THAT THE PERIOD OF PAROLE SUPERVISION IS DETERMINED BY THE DEFENDANT'S SENTENCE, RATHER THAN THE DEFENDANT'S CONVICTION. ACCORDINGLY, DEFENDANT'S SECOND-DEGREE SENTENCE REQUIRES A PAROLE PERIOD OF THREE YEARS. U.S. CONST. AMENDS. XIV; N.J. CONST. ART I, ¶¶ 1. (NOT RAISED BELOW.)
N.J.S.A. 2C:43-7.2c provides in pertinent part that a court imposing a minimum period of parole ineligibility of 85 percent of the sentence pursuant to this section shall also impose a five-year term of parole supervision if the defendant is being sentenced for a crime of the first degree, or a three-year term of parole supervision if the defendant is being sentenced for a crime of the second degree. (emphasis added).
We have interpreted this section as applying to the crime for which defendant was sentenced, not the judge's decision to exercise discretion to downgrade the sentence to a lesser degree under N.J.S.A. 2C:44-1f(2). See State v. Johnson, 376 N.J. Super. 163, 169 (2005), certif. denied, 183 N.J. 592 (2005); State v. Cheung, 328 N.J. Super. 368, 371 (App. Div. 2000). The operative word is "for." Defendant pled to and was sentenced for a crime of the first degree, despite the downgrade.
Defendant's contention that Cheung and Johnson, by implication, were "wrongly decided" lacks merit. Those decisions are dispositive. Defendant was sentenced "for" a guilty plea to first-degree robbery offense, notwithstanding the judge's exercise of discretion to downgrade.
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