On appeal from Superior Court of New Jersey, Law Division, Hudson County, 05-03-0381.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 2, 2008
Before Judges Payne and Alvarez.
Defendant, Ernest Zoppi, was convicted by a jury of three counts of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b, and one count of second-degree sexual assault, N.J.S.A. 2C:14-2c. He was sentenced on the conviction for sexual assault to an extended term of twenty years in custody with a ten-year period of parole ineligibility, and was also found to be subject to the parole ineligibility provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. However, the sentencing judge mistakenly regarded the NERA sentence as applicable only to the base term. Consecutive terms of imprisonment of eighteen months, each with nine months of parole ineligibility, were imposed as the result of two of the convictions for criminal sexual contact; a concurrent term of the same length with the same parole disqualifier was imposed for the third conviction for criminal sexual contact. The total aggregate sentence was thus twenty-three years in custody with eleven and one-half years of parole ineligibility. Defendant has appealed from his convictions and sentence.
On appeal, defendant presents the following arguments for our consideration:
POINT I THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED WHEN THE PROSECUTOR CALLED THE DEFENDANT "A PERVERT WITH A PLAN" IN HIS SUMMATION (Not Raised Below).
POINT II THE ABSENCE FROM THE TRIAL COURT'S CHARGE TO ANY REFERENCE TO THE PRINCIPLES OF STATE V. KOCIOLEK CONSTITUTES PLAIN ERROR (Not Raised Below).
POINT III THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE HIS DUE PROCESS RIGHTS TO FULL APPELLATE REVIEW W[ERE] VIOLATED (Not Raised Below).
POINT IV IMPOSITION OF AN AGGREGATE BASE CUSTODIAL SENTENCE OF 23 YEARS WITH A PAROLE INELIGIBILITY PERIOD OF 11-1/2 YEARS WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF JUDICIAL SENTENCING DISCRETION.
(A) THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING THE DEFENDANT TO AN EXTENDED TERM ON HIS CONVICTION FOR SEXUAL ASSAULT ON COUNT TEN.
(B) IMPOSITION OF THE 20 YEAR BASE CUSTODIAL SENTENCE WITH 10 YEARS OF PAROLE INELIGIBILITY ON THE DEFENDANT'S CONVICTION FOR SEXUAL ASSAULT ON COUNT TEN WAS MANIFESTLY EXCESSIVE.
(C) THE COURT ABUSED ITS DISCRETION IN IMPOSING CONSECUTIVE SENTENCES ON THE DEFENDANT'S CONVICTIONS ...