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State v. Berrios

January 14, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RAFAEL BERRIOS, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 06-05-1020; Bergen County, Indictment No. 05-06-1016.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 17, 2008

Before Judges Payne and Newman.

On June 1, 2005, a Bergen County Grand Jury returned Indictment No. 06-05-1016, charging defendant Rafael Berrios with second degree luring, N.J.S.A. 2C:13-6 (count one) and third degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count two). On May 3, 2006, an Atlantic County Grand Jury returned superseding Indictment No. 06-05-1020, charging defendant with six counts of second degree possession of a weapon, a firearm, by a previously convicted person, N.J.S.A. 2C:39-7 (counts one, two, three, four, five and six), and fourth degree possession of a weapon by a previously convicted person, N.J.S.A. 2C:39-7 (count seven).

On May 26, 2006, defendant entered an unconditional guilty plea to the Atlantic County charges. The plea was open, but the State agreed that, with mergers, the maximum sentence would be ten years in prison with a five year parole ineligibility period. On June 19, 2006, defendant entered an unconditional guilty plea to count one of the Bergen County indictment. The State agreed to recommend a sentence of five years in prison, consecutive to the sentence to be imposed in Atlantic County.

On July 14, 2006, defendant was sentenced in Atlantic County on count two to eight and one-half years imprisonment with a five year parole ineligibility period. Counts one, three four, five, six and seven were merged into count two.

On August 4, 2006, the court sentenced defendant in Bergen County, consistent with the plea agreement, to a term of five years in prison, consecutive to the sentence imposed in Atlantic County. Pursuant to Megan's Law, defendant was also sentenced to parole supervision for life and the usual penalties and assessments.

Between September 8 and October 14, 2004, defendant had electronic conversations over the internet with someone he believed to be a fourteen-year-old girl named "Jules," but who was an undercover officer from the Bergen County Prosecutor's Office. Defendant was attempting to lure the young girl into having a sexual relationship with him.

Bergen and Atlantic Counties cooperated in this investigation. On October 14, 2004, the Bergen County Prosecutor's Office informed the Hammonton Police Department that defendant had changed his computer screen name and mentioned on his profile that he had weapons. Later that day, defendant displayed several weapons to the undercover officer on an internet webcam.

The next morning, members of the Bergen County Prosecutor's Office and the Hammonton Police Department executed a no-knock search warrant at defendant's room in the Ramada Inn at 308 South White Horse Pike. Seized from defendant's room were a Smith and Wesson revolver, a single shot New England twelve-gauge sawed off shotgun, a Mossburg twelve-gauge pistol grip shotgun, three Crosman .177 caliber pellet guns and a large knife, all possessed by defendant, who had previously been convicted of stalking.

On appeal, defendant raises the following issues for our consideration:

POINT I: THE BERGEN COUNTY AND ATLANTIC COUNTY CHARGES SHOULD HAVE BEEN JOINED INTO A SINGLE PROSECUTION PURSUANT TO N.J.S.A. 2C;1-8b AND RULE 3:15-1b, OR AT LEAST CONSOLIDATED INTO A SINGLE PROCEEDING FOR PLEA AND SENTENCING PURPOSES PURSUANT TO RULE 3:25A-1. ALTERNATIVELY, UNDER THE CIRCUMSTANCES OF THIS CASE, DEFENDANT SHOULD HAVE BEEN SENTENCED FOR HIS OFFENSES IN A SINGLE PROCEEDING BY A SINGLE JUDGE ...


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