On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 05-04-00302.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Sabatino and Harris.
Defendant was sentenced to two concurrent terms of ten years with eighty-five percent to be served before parole eligibility under the No Early Release Act (NERA) for two counts of armed robbery. Other counts were merged into these convictions following a plea to the indictment.
Defendant moved to change or reduce the sentence approximately three years later. As a result it was time barred under Rule 3:21-10(a) unless cognizable under the exception to the bar embodied in Rule 3:21-10(b). However, it was not cognizable because our case law makes it clear that a motion for change or reduction of sentence cannot be considered before the statutory minimum parole ineligibility period has been served. See, e.g., State v. Mendel, 212 N.J. Super. 110 (App. Div. 1986); See also State v. Kearns, 393 N.J. Super. 107, 111 (App. Div. 2007), State v. Le, 354 N.J. Super. 91, 95 (Law Div. 2007) (applying Mendel to a NERA term). Compare State v. Farrington, 229 N.J. Super. 184 (App. Div. 1988) (concerning discretionary ineligibility terms).
The minimum sentence imposed for first degree robbery is ten years, and a mandatory eighty-five percent ineligibility term under NERA was imposed. Hence, even construing Mendel as relating to the minimum term possible under the statute, including a downgrade, as opposed to service of the minimum term imposed where there is a statutory requirement for a mandatory minimum or parole ineligibility term, see State v. Brown, 384 N.J. Super. 191 (App. Div. 2006), a downgrade was not warranted in order to achieve success on a transfer to a drug treatment program, see State v. McKinney, 140 N.J. Super. 160 (App. Div. 1976), and the NERA minimum term had not been served when his application was considered. As defendant received the minimum term possible within the range for a first degree crime, concurrent terms of ten years with NERA, and eight and one-half years had not passed before the motion was filed, the application was premature.
Defendant also argues that he should have been assigned counsel on his application. Despite the recent rule change now allowing the assignment of counsel on a Rule 3:21-10 application as a matter of discretion for "good cause", the rule did not authorize it before September 2009, and such an application is not a "critical stage" of the prosecution. In any event, there is no "good cause" warranting same. See R. 3:21-10(c).
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