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State v. Reilly

August 11, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DEVIN REILLY, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Accusation No. 05-10-0955-A.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 28, 2009

Before Judges Yannotti and LeWinn.

On October 3, 2005, defendant Devin Reilly pled guilty to an accusation charging him with first-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(1); second-degree leader of organized crime, N.J.S.A. 2C:5- 2(g) and 2C:41-1; and second-degree eluding law enforcement, N.J.S.A. 2C:29-2(b). On November 18, 2005, defendant was sentenced, pursuant to the plea agreement, to a term of fifteen years with a five-year parole ineligibility period on the first count, a consecutive five-year term on the second count and a concurrent five-year term on the third count. On January 18, 2006, defendant filed a pro se motion for reconsideration of sentence; the trial court denied this motion by an order entered on May 12, 2006, which stated that defendant provided "no documentary support for [his] application as required by Rule 3:21-10(c)."

Defendant appeals from the November 18, 2005 judgment of conviction, raising the following issues for our consideration:

POINT I THE FACTUAL BASIS FOR LEADER OF ORGANIZED ACTIVITY WAS INSUFFICIENT

POINT II [THE] TRIAL COURT INAPPROPRIATELY CONSIDERED AGGRAVATING FACTOR NUMBER 11

POINT III THE TRIAL COURT ERRED IN IMPOSING THE "PRESUMPTIVE" TERM ON COUNT ONE AND THE LOWEST TERM FOR THE SECOND DEGREE RANGE ON COUNT TWO

POINT IV THE IMPOSITION OF CONSECUTIVE SENTENCES ON COUNTS 1 AND 2 WAS IMPROPER

For the reasons that follow, we affirm defendant's convictions, but remand for resentencing.

At defendant's plea hearing, his attorney questioned him on the leader of organized crime count as follows:

Q: Count 2, you're pleading guilty to being a leader of organized crime, a crime of the second-degree; on diverse dates in Cumberland County, did you possess marijuana, cocaine, steroids, and engage in gambling activities with other persons?

A: Yes.

Q: And, was that done for ...


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