November 10, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SAMUEL KROSKY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 04-09-1322, 04-09-1323, 04-09-1325, 04-09-1326, 04-09-1327, 04-09-1329, 04-09-1330, 04-09-1335, 04-09-1339, 04-09-1342, 04-09-1345, 04-09-1372, 04-09-1373, 04-09-1379, 04-09-1380, 04-09-1384.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 26, 2009
Before Judges Rodríguez and Yannotti.
Defendant Samuel L. Krosky appeals from an order entered by the trial court on May 19, 2008, denying his petition for post-conviction relief (PCR). We affirm.
On December 14, 2004, defendant entered a guilty plea to nine counts of third degree burglary, as charged in Middlesex County Indictments 04-09-1322, 04-09-1325, 04-09-1326, 04-09-1330, 04-09-1335, 04-09-1345, 04-09-1372, 04-09-1380 and 04-09-1384, and seven counts of third degree attempted burglary as charged in Indictments 04-09-1323, 04-09-1327, 04-09-1329, 04-09-1342, 04-09-1373, 04-09-1379 and 04-09-1339. The State agreed to recommend the imposition of an aggregate sentence of twenty-five years of incarceration with a ten-year period of parole ineligibility.
The State further agreed to dismiss the remaining charges in the indictments, as well as charges in other indictments then pending in Middlesex County. The State also agreed that the sentences imposed on any additional charges for incidents that occurred prior to defendant's incarceration would run concurrent with defendant's sentence. In addition, the State agreed that defendant's sentence would be concurrent with the sentences imposed in the other counties in which charges were then pending.*fn1
On March 29, 2005, the trial court sentenced defendant to an aggregate twenty-five years of incarceration, with a ten-year period of parole ineligibility. Defendant appealed and we remanded the matter for re-sentencing pursuant to State v. Natale, 184 N.J. 458 (2005). See State v. Krosky, No. A-4803-04 (Oct. 27, 2005). On remand, the trial court imposed the same sentence. Defendant appealed and we affirmed. State v. Krosky, No. A-4803-04 (August 24, 2006). The Supreme Court denied defendant's petition for certification. State v. Krosky, 189 N.J. 427 (2007).
Thereafter, defendant filed a pro se petition for PCR. Defendant argued that he was the victim of improper and impermissible disparity in sentencing. Defendant asserted that co-defendant Jamie Wilson (Wilson) had been sentenced to three years of probation in Passaic County and the other counties had dismissed their charges against her. Defendant also asserted that he had been subjected to "vastly different" sentences in the various counties in which he had been found guilty of burglary and other theft-related offenses.
Defendant additionally argued that his sentence was excessive. He asserted that the court had abused its discretion by improperly considering and weighing the aggravating and mitigating factors, by imposing an "overly harsh" sentence, and by failing to adequately inform him about the parole ineligibility period of his sentence. Defendant further argued that he had been prejudiced by the multiplicity of charges.
The same judge who presided at trial considered defendant's PCR petition on May 16, 2008, and placed his decision on the record on that date. The court noted that defendant had been faced with numerous charges in several counties and the prosecutors could not reach an agreement on consolidation of the charges. Even so, defendant had not received a longer sentence than the aggregate sentence imposed in Middlesex County, thereby allowing defendant to enjoy "the benefit of the equivalent of a consolidation." The court also pointed out that, based on the number of charges, defendant faced life imprisonment and he received a sentence that "was considerably less [than] that." The court found that the sentence was not excessive.
The court also rejected defendant's sentencing disparity claim. The court noted that Wilson was defendant's girlfriend and "she was undoubtedly influenced by him to commit these crimes." The court additionally noted that Wilson had cooperated with the State and her cooperation "really [made] it possible for the defendant to be convicted." The court pointed out that, "like most of the citizens of New Jersey," Wilson "had a much lesser criminal history [than] the defendant."
In addition, the court rejected defendant's contention that he had been prejudiced by the multiplicity of charges. The court observed that it is "entirely appropriate" to charge an individual with burglary and theft in the same indictment. The court noted that defendant had only pled to one count in each indictment and, therefore, had not been prejudiced by the multiple charges. The court also noted that defendant's aggregate sentence included consecutive sentences for certain offenses but those sentences had only been imposed for "separate and distinct burglaries on separate and distinct dates on separate locations."
The trial court entered an order dated May 16, 2008, memorializing its decision. This appeal followed. Defendant raises the following issues for our consideration:
POINT I THE DISPARITY IN THE SENTENCES IMPOSED ON THE DEFENDANT AND ON CO-DEFENDANT WILSON WAS COGNIZABLE IN POST-CONVICTION RELIEF BECAUSE IT RESULTED IN AN UNLAWFUL SENTENCE.
(A) THE COURT MISAPPLIED THE APPLICABLE LEGAL STANDARDS IN RULING THAT THE DEFENDANT WAS PROCEDURALLY BARRED FROM RAISING THE ISSUE OF SENTENCE DISPARITY IN POST-CONVICTION RELIEF.
(B) SINCE THE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF SENTENCE DISPARITY THE MATTER SHOULD BE REMANDED FOR A FULL EVIDENTIARY HEARING ON THE ISSUE.
POINT II THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EQUAL PROTECTION OF THE LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 1, OF THE NEW JERSEY CONSTITUTION (NOT RAISED BELOW).
POINT III DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN PCR COUNSEL'S BRIEF AND IN DEFENDANT'S PRO SE PETITION FOR POST-CONVICTION RELIEF.
We have considered the record in light of these contentions and conclude that defendant's appeal is entirely without merit. We accordingly affirm the trial court's order denying PCR substantially for the reasons stated by the trial court in the decision placed on the record on May 16, 2008. R. 2:11-2(e)(2). We add the following brief comments.
Defendant argues that his sentence is unlawful because it is significantly dissimilar to the sentence imposed upon co-defendant Wilson. Notwithstanding defendant's arguments to the contrary, he did not establish a prima facie case of sentencing disparity.
Indeed, as the trial court pointed out in its decision on the record, defendant and Wilson were not similarly situated. Defendant presented no evidence to counter the court's finding that defendant has an extensive criminal record while Wilson does not. Moreover, it is undisputed that Wilson cooperated with law enforcement and her cooperation enabled the State to secure defendant's conviction.
The trial court's findings are supported by defendant's Middlesex County pre-sentencing report, portions of which are appended to defendant's supplemental pro se brief. The report notes that defendant initially denied any involvement in the burglaries. The report also details Wilson's extensive cooperation with the police.