On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 94-09-3103.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodríguez and LeWinn.
Defendant Luis Caraballo appeals from the March 28, 2008 order of the Law Division denying his petition for post- conviction relief (PCR). For the reasons that follow, we affirm.
The factual background may be summarized as follows. On February 18, 2000, defendant was indicted in Essex County on three counts of first-degree robbery, N.J.S.A. 2C:15-1; fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5(d); and third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4(d). On June 8, 2001, defendant entered into a negotiated plea agreement whereby he pled guilty to one count of first-degree robbery and the fourth-degree charge of unlawful possession of a knife. The agreement provided that defendant would be sentenced on the robbery count as a second-degree offense with a maximum exposure of ten years and a recommended maximum of seven years; defendant's sentence was subject to an eighty-five percent parole ineligibility period under the No Early Release Act, N.J.S.A. 2C:43-7.2(c) (NERA), due to his prior conviction for distribution of a controlled dangerous substance within 1000 feet of school property, N.J.S.A. 2C:35-7.
On September 4, 2002, defendant was sentenced to a term of five years with a NERA parole ineligibility period on the robbery count and a concurrent term of twelve months on the weapons count; these terms were also made concurrent to sentences defendant was serving from Hudson County. Defendant was ordered to serve a five-year term of parole supervision upon release from custody. He was awarded 110 days credit for jail time and 417 days in gap time credit pursuant to N.J.S.A. 2C:44-5(b)(2).
On or about October 1, 2007, defendant filed a PCR petition arguing that (1) his parole supervision period should be three years and (2) his gap time credit should come off "the back end of his sentence[,]" thereby moving his release date from May 2011 to March 2008. Counsel was assigned and oral argument was held on March 24, 2008; defendant was present.
On March 28, 2008, Judge Patricia K. Costello issued a written decision denying defendant's PCR petition in its entirety. Regarding the claim that his parole supervision period should be three years instead of five, the judge noted that NERA requires a court to impose a five-year parole supervision period "if the defendant is being sentenced for a crime of the first degree . . . ." N.J.S.A. 2C:43-7.2(c). Only "if the defendant is being sentenced for a crime of the second degree[,]" is a three-year parole supervision term imposed. Citing State v. Cheung, 328 N.J. Super. 368, 371 (App. Div. 2000), the judge rejected defendant's argument that "because his plea to a first-degree crime include[d] an agreement that he was to be sentenced as a second-degree offender, then his period of parole ineligibility should be three years and not five."
Regarding defendant's gap time credit argument, Judge Costello noted that a mandatory parole ineligibility period imposed under NERA cannot be reduced by applying gap time credits, citing Meyer v. N.J. State Parole Bd., 345 N.J. Super. 424, 430 (App. Div. 2001).
On appeal, defendant raises the following issue for our consideration:
DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED BECAUSE HE IS ENTITLED TO THREE YEARS OF PAROLE SUPERVISION UNDER THE NO EARLY RELEASE ACT AND IS ALSO ENTITLED TO 417 [DAYS OF] JAIL GAP TIME CREDIT
Having reviewed this argument in light of the record and the controlling legal principles, we conclude that it is without merit. We affirm substantially for the reasons set forth by Judge Costello in her written decision of March 28, 2008. We add only the following brief comments.
In State v. Cheung, supra, 328 N.J. Super. at 371, we addressed precisely the same issue defendant raises here. The defendant in that case pled guilty to three charges including one count of first-degree robbery; pursuant to his plea agreement, the defendant was sentenced on the robbery charge to a second-degree term of eight years, subject to NERA. Id. at 369. We held that "the judgment should reflect the five-year term of parole supervision mandated by NERA . . . . [A]lthough the matter was downgraded for sentencing under N.J.S.A. 2C:44-1f(2), defendant was ...