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State v. Stasicky


March 1, 2010


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 98-04-478.

Per curiam.


Submitted February 1, 2010

Before Judges Carchman and Lihotz.

Pursuant to a negotiated plea agreement, defendant John T. Stasicky entered a plea of guilty to first-degree armed robbery, N.J.S.A. 2C:15-1; and third-degree unlawful possession of a weapon, N.J.S.A. 2C:58-4. He was sentenced on March 27, 2000 to an aggregate term of imprisonment of fifteen years with a period of parole ineligibility of twelve years, nine months and three days. See The No Early Release Act, (NERA), N.J.S.A. 2C:43-7.2. This sentence ran concurrent to another sentence imposed on a second indictment resulting in the same aggregate period of incarceration. Defendant appealed his sentence, and we affirmed. The Supreme Court denied certification, ___ N.J. ___ (2003). Thereafter, defendant filed a timely petition for post- conviction relief, which was denied. In a comprehensive per curium opinion, we affirmed, and the Supreme Court denied certification. 188 N.J. 219 (2006).

Defendant then filed a motion "to correct an illegal sentence," or in the alternative, for reconsideration of his sentence. The motion was denied. In a series of motions, defendant then sought to withdraw his guilty plea to a number of indictments including the indictments prompting his present sentence. Those applications were denied.

On appeal, defendant asserts that his sentences were illegal and challenges the constitutionality of NERA. In addition, he cites our decision in State v. Freudenberger, 358 N.J. Super. 162 (App. Div. 2003) and asserts that he was not advised of NERA or its consequences. See also State v. Johnson, 182 N.J. 232 (2005).

We first note that Freudenberger was decided in 2003, and defendant's appeal as well as his PCR post-dated that decision. At no time did he raise the Freudenberger issue. But there is a more compelling reason why his argument is without merit. At the time of the entry of defendant's plea, the following colloquy took place:

THE COURT: All right. Now, there are no recommendations being made here. That means that I am going to have total discretion as to what the sentence is going to be. If I find that you are a persistent offender I may not have as much discretion because the law may require that you are sentenced to a minimum period of parole ineligibility. For example, if I find that the No Early Release Act is applicable that means that whatever sentence I impose you would have to serve eighty-five percent of that sentence. You understand that?

THE DEFENDANT: Yes, your Honor.

THE COURT: That has all been explained to you by Mr. Toto, I assume?

THE DEFENDANT: Yes, your Honor.

THE COURT: You understood everything he said to you?

THE DEFENDANT: Yes, your Honor.

Defendant's argument is without merit.

We have reviewed defendant's remaining arguments including his claim that his sentence is illegal and that NERA is unconstitutional. We conclude that the arguments, too, are without merit and do not require further discussion. R. 2:11-3(e)(2). Moreover, to the extent that his claims of unconstitutionality raise new arguments, these issues should properly have been raised in the earlier proceedings. See R. 3:22-4. We perceive of no basis for our intervention.



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