On appeal from Superior Court of New Jersey, Law Division, Hudson County, No. 85-07-0738.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing and Lyons.
Defendant appeals from a trial court order denying his motion to correct an illegal sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Tried to a jury, defendant was convicted in 1985 of kidnapping, burglary, aggravated sexual assault, sexual assault, robbery, aggravated assault and criminal restraint. The trial court granted the State's motion for an extended-term sentence and sentenced defendant in March 1986 to an aggregate sentence of sixty-five years in prison, with a thirty-year period of parole ineligibility. The trial court thereafter modified the period of parole ineligibility to twenty-five years. This court affirmed defendant's conviction and sentence, and the Supreme Court denied his petition for certification.
Defendant has since filed numerous petitions for post-conviction relief, all of which have been denied. In May 2005 defendant filed a motion to correct his sentence, contending it was illegal. He appeals from the trial court order denying his motion. On appeal, he raises the following arguments:
POINT I STATUTE USED [DOES] VIOLATE SENTENCE OF THE DEFENDANT HIS 14TH AND 6TH AMENDMENT RIGHTS, AND UNDER ART 1. PAR'S 8 AND 10 OF NEW JERSEY CONSTITUTION, HIS SENTENCE IS ILLEGAL AND UNCONSTITUTIONAL.
POINT II THE ILLEGAL SENTENCE IMPOSED BY THE COURT DID VIOLATE DEFENDANT'S 14TH AND 6TH AMENDMENT RIGHTS, ALSO VIOLATED ARTICLE 1, PARAGRAPH'S 8, AND 10 OF NEW JERSEY CONSTITUTION, THUS RENDERING IT ILLEGAL AND UNCONSTITUTIONAL.
POINT III [THE] TRIAL  COURT USED FRAUDULENT DOCUMENTS TO EXTEND THE DEFENDANT'S SENTENCE ILLEGAL[LY], VIOLATING THE DEFENDANT 5TH, 8TH AND 14TH AMENDMENT (U.S.C.A. V, VIII[,] XIV).
As to the first two issues, we affirm substantially for the reasons stated by Judge Camille M. Kenny in her letter opinion of February 22, 2007. As Judge Kenny noted, defendant did not have a direct appeal pending at the time of the Supreme Court's decision in State v. Natale, 184 N.J. 458 (2005), and is thus not entitled to pipeline retroactivity.
The third argument rests upon defendant's contention that the pre-sentence report that was prepared for use at his sentencing includes a 1976 conviction from New York State which is not his. This, according to defendant, makes the extended-term sentence imposed upon him in 1986 invalid. We disagree.
First, the sentencing transcript shows that defendant and his attorney reviewed the presentence report prior to sentencing and made no objection to its accuracy. In addition, the portion of defendant's presentence report he has submitted to us demonstrates that his extensive criminal record made him subject to an extended-term sentence without regard to the conviction in New York State. There is no indication from the sentencing transcript that the New York State conviction played any role at all in the ...