On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 02-04-0412.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 25, 2008
Before Judges Graves and Alvarez.
Defendant Kareem McLeod entered guilty pleas on Passaic County Indictment No. 02-04-0412 to fourth-degree conspiracy to riot, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:33-1(a)(1) (count one), second-degree reckless manslaughter, N.J.S.A. 2C:11-4(b) (count four), fourth-degree rioting, N.J.S.A. 2C:33-1(a)(1) (count seven), and third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7) (count twelve). In exchange, the State agreed to recommend a sentence on count four of a maximum of ten years subject to the No Early Release Act, NERA, N.J.S.A. 2C:43-7.2, on count twelve of a maximum of five years concurrent, and on counts one and seven of eighteen months imprisonment concurrent. On February 18, 2005, defendant was sentenced to lesser terms of seven years subject to NERA on count four, a concurrent four years on count twelve, and a concurrent fifteen months on count seven, into which count one was merged. We affirm.
Because defendant was only fifteen years of age when the homicide occurred, the State filed a motion to waive jurisdiction from the Family Part to the Law Division, so defendant could be tried as an adult. The motion was granted after two days of hearings. The family court judge issued a written opinion in which he found probable cause, that there was no reasonable prospect that defendant could be rehabilitated before attaining the age of nineteen, and that considerations of deterrence outweighed all other factors. He therefore, waived jurisdiction and determined that defendant should be tried as an adult.
The charges arise from a June 20, 2001, incident during which a group of teenagers became involved in a "wilding," or rioting, episode. It began mid-morning in a high school building and moved out onto nearby streets where the group assaulted three men chosen at random. Two of the victims required medical treatment for their injuries; the third, Hector Robles, died hours after the assault from blunt force trauma including a ruptured kidney.
When defendant pled guilty he stated, among other things, that he knew he would be sentenced to ten years imprisonment subject to eight and one-half-years of parole ineligibility, in other words, subject to NERA, on the amended charge of reckless manslaughter.*fn1 He was asked if he understood that whatever the length of his sentence, it would be subject to NERA, and he responded in the affirmative. The plea form he signed included the standard supplemental page mandated for sentences subject to NERA, which page he signed separately.
During the plea colloquy, defendant readily acknowledged joining in the "little rioting going on." He admitted that the group was assaulting people at random, and that he kicked the second victim the group encountered, a cake delivery man. Defendant described his encounter with Robles as follows:
[DEFENSE COUNSEL]: Did you move down the street with the crowd?
[DEFENSE COUNSEL]: Did there come a point where you saw an elderly gentleman standing in an alley?
[DEFENSE COUNSEL]: And you now know that man's name to be Mr. Robles, is that correct?
[DEFENSE COUNSEL]: Did you approach Mr. Robles?
THE DEFENDANT: I attempted to approach him. I was the first one in front of him. But before I touched the man, someone else attempted to hit him.
[DEFENSE COUNSEL]: All right. Well, when you --
Let me take you back a little bit. When you saw Mr. Robles in this alley, did you walk up to him? Did you approach him?
THE DEFENDANT: I didn't say nothing to him. I walked up to him.
THE COURT: I can't hear you. You walked up to him?
THE DEFENDANT: Like where you are, I was attempting to walk to the man. But before I could ...