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State v. Crosby

October 27, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MORRIS CROSBY, JR., A/K/A ANDRE PRICE, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 99-08-1194.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 5, 2009

Before Judges Lisa and Alvarez.

Defendant appeals from the January 25, 2008 order denying his petition for post-conviction relief (PCR). On March 27, 2000, pursuant to a plea agreement, defendant pled guilty in Union County to two counts of first-degree armed robbery, N.J.S.A. 2C:15-1. The robberies were committed five days apart in separate municipalities in Union County, and each was the subject of a separate Union County indictment. In each case, defendant was armed with a gun. Under these circumstances, the crimes were subject to the mandatory sentencing provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and the Graves Act, N.J.S.A. 2C:43-6c, g.

As recommended in the plea agreement, on May 5, 2000, defendant was sentenced on each count to eighteen years imprisonment, subject to the eighty-five percent parole disqualifier and five years parole supervision required by NERA; the sentences were ordered to be served concurrent to each other and also concurrent to the sentence previously imposed in Middlesex County for a third armed robbery defendant had committed there. Defendant appealed. Because his appeal pertained only to sentencing issues, it was placed on our sentencing oral argument calendar. See R. 2:9-11. We affirmed. State v. Crosby, No. A-4169-01T4 (App. Div. March 3, 2004).

Defendant then filed his PCR petition. He contended he was not advised prior to his plea in Union County of NERA's five-year parole supervision requirement. He also argued that his plea counsel was ineffective for failing to argue for a sentence lower than that recommended in the plea agreement. Defendant testified at the PCR hearing, after which Judge Triarsi rejected defendant's arguments and denied his petition.

On appeal, defendant argues:

POINT I

DEFENDANT'S PLEA SHOULD BE VACATED BECAUSE HE WAS NOT TOLD BY THE COURT AT THE TIME OF ENTRY OF HIS PLEA THAT HE WOULD HAVE FIVE YEARS OF PAROLE SUPERVISION AFTER COMPLETING HIS SENTENCE.

POINT II

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HIS ATTORNEY FAILED TO PRESENT ANY ARGUMENT AT SENTENCING THAT SOUGHT A LESSER SENTENCE THAN THE ONE SET FORTH IN THE PLEA AGREEMENT.

We reject defendant's arguments and affirm.

The gravamen of defendant's first argument is that he was not advised prior to pleading guilty in Union County that his eighteen-year sentences, concurrent on each of the two armed robberies committed in that county, would carry with them a five-year parole supervision requirement under NERA. When entering his plea, he signed the supplemental plea form for NERA cases, which included the following question: "Do you understand that because you have plead guilty to these charges the court must impose a 5 year term of parole supervision and that term will begin as soon as you complete the sentence of incarceration?" The answer "YES" was circled. At the plea hearing, defendant provided sworn testimony, in which he acknowledged reading, understanding, and signing the form. He acknowledged that, although the ...


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