On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 97-06-0639.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and R. B. Coleman.
Defendant Henry Camilo appeals from a judgment of conviction and order of commitment entered July 3, 2003, imposing a five-year flat custodial term in prison for second-degree aggravated assault. We affirm.
On April 28, 1997, defendant attacked his drinking companion and friend, Ramon Maria, with a machete at Maria's residence in Paterson. As a result, a Passaic County grand jury returned Indictment No. 97-06-0639 charging defendant with second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(1) (count one); second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(2) (count two); third-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4d (count three); and second-degree burglary, contrary to N.J.S.A. 2C:18-2 (count four).
Pursuant to a negotiated plea agreement, defendant entered a plea of guilty to count one on August 19, 1997, and in exchange, the State agreed to recommend that defendant's maximum incarceration be seven years and to recommend the dismissal of the remaining counts in the indictment. Judge Joseph J. Riva accepted the plea and, although the executed plea form reflected a maximum exposure of seven years incarceration, Judge Riva informed defendant that he would impose a flat term of six years incarceration if, upon his review of the pre-sentence report, the report confirmed that defendant had no prior criminal record. See Rule 3:21-2 (directing that before the imposition of a sentence, court support staff shall make a pre-sentence investigation in accordance with N.J.S.A. 2C:44-6 and shall report to the court).
On September 26, 1997, the date set for sentencing, defendant failed to appear, and a bench warrant for his arrest was issued. Approximately one month later, defendant voluntarily surrendered and offered to assist the State in an ongoing investigation by the Passaic County Prosecutor's Office of an automobile insurance fraud ring, in which defendant admitted he was an active participant. The bench warrant was rescinded and defendant was allowed to remain free on bail to facilitate his cooperation with the State.
This was the first in a long series of postponements of defendant's sentencing on the aggravated assault conviction. Between August 19, 1997 and May 15, 2001, there were more than twenty continuances. Defendant now contends that he had an understanding with the State that his cooperation in the insurance fraud matter would result in no jail time on his conviction for aggravated assault; however, no formal agreement to that effect was executed by defendant and the prosecutor's office, and no such agreement was placed on the record in this case. Neither was any motion made for a modification of the plea agreement that had been entered before the court on August 19, 1997.*fn1
Nevertheless, defendant insists that he believed over the next several years that he would receive a non-custodial sentence, continued to assist the State as the key witness in connection with the fraud investigation which, according to defendant, led to approximately forty-five to fifty convictions. During such time period of about four years, the prosecutor's office went through several personnel changes, and other individuals involved - prosecutor, appointed defense attorney and the judge handling the case - changed as well. At some point, the newly involved defense attorney expressed concern that defendant's alleged understanding with the prosecutor's office of "no jail time" had grown tenuous due to personnel changes and the extended delay in sentencing. As a result of that concern, on May 15, 2001, the defense attorney filed a motion on defendant's behalf seeking to dismiss the indictment. As an alternative, defendant sought to compel the State to honor its bargain or to allow defendant to withdraw his guilty plea.
Judge Miguel A. De La Carrera, new to the case, denied defendant's motion on March 31, 2003.
Finally, on June 30, 2003, about six years after defendant entered the guilty plea, Judge De La Carrera sentenced him to a five-year custodial term in State prison. That sentence was two years less than the sentence the State had initially agreed to recommend as part of the plea agreement, and was one year less than Judge Riva had indicated he would impose when he accepted the plea. In addition, Judge De La Carrera included in his order of commitment a recommendation that defendant be permitted to apply for the Intensive Supervision Program (ISP), pursuant to Rule 3:21-10(b) and (c).*fn2 The judge also granted defendant's motion for bail pending appeal. On February 16, 2005, defendant filed his notice of appeal in this matter.
On appeal defendant raises two points of argument for our consideration:
POINT I: THE EXCESSIVE TIME DELAY OF ALMOST SIX YEARS BETWEEN MR. CAMILO'S PLEA AND HIS SENTENCE VIOLATED HIS RIGHTS TO A SPEEDY TRIAL AND TO DUE PROCESS. (U.S. CONST. AMENDS. VI AND ...