October 9, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DANIEL F. BERMUDEZ, A/K/A DANIEL K. BERMUDEZ, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 06-09-1421.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 23, 2009
Before Judges Stern and Sabatino.
Defendant pled guilty to conspiracy to commit robbery, a second degree crime, with a recommendation that the matter be downgraded for sentencing.*fn1 He argues that he should not have received a No Early Release Act (NERA) ineligibility term, N.J.S.A. 2C:43-7.2, that he should have received a lesser sentence because of mitigating factors not considered, and that counsel was ineffective for not arguing that NERA did not apply. Defendant does not assert he was told by the court or his counsel that NERA did not apply, which would permit him to withdraw his plea. To the contrary, the State recommended "the negotiated plea of three years, 85 percent," and defendant acknowledged that he executed the written NERA plea form (which is not in the record) and that he would have to serve three years of parole supervision. Defendant also acknowledged having to serve "a three-year New Jersey state Prison sentence. Eighty-five percent of which you'd have to serve."
The law is settled. The June 29, 2001, amendments to NERA avoid the need to decide force, the absence of which leads defendant to claim he was not exposed to NERA. However, the enumerated first or second degree crime, including conspiracy, suffices under the amended statute. See State v. Andino, 345 N.J. Super. 35, 39 (App. Div. 2001); N.J.S.A. 2C:43-7.2. Moreover, the downgrade carries the NERA requirement with it, so that in State v. Cheung the period of parole supervision was held to be five years, not three, on a downgrade from first to second degree. 328 N.J. Super. 368, 371 (App. Div. 2001). See also State v. Kearns, 393 N.J. Super. 107, 113 (2007) (requiring the eighty-five percent ineligibility term on a violation of probation). That being so, defendant had to receive a custodial sentence because of the required ineligibility term under NERA and he received the lowest sentence and ineligibility term possible. See State v. O'Connor, 105 N.J. 399 (1987). Accordingly, you could not receive a lesser term if the judge found all the mitigating factors referred to by defendant, and the defense counsel can not be deemed ineffective for not asking for something he could not receive.