On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 02-01-0161.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Waugh.
This matter commenced on November 9, 2001, when a seventy- five year old woman was accosted by a man who had crouched in front of her car awaiting her return from the dry cleaners.
When she returned to her car, the man sprang forward, grabbed her left wrist, twisted and pulled her arm, and ran away with her pocketbook containing $750. State v. Thomas, 187 N.J. 119, 124 (2006) (Thomas I).
The man jumped into the passenger seat of an awaiting car driven by defendant Charles Thomas. Ibid. The car sped away and a chase ensued. Ibid. During the chase, defendant struck several vehicles, including one as he drove through a red light.
Id. at 214-25. Eventually, defendant and his passenger abandoned the car and fled on foot. Id. at 125. Defendant was caught and charged in a nine-count indictment. Ibid.
A jury found defendant guilty of six counts of the nine- count indictment. Id. at 127. After merging several counts, defendant received an aggregate term of twenty-eight years in prison with thirteen-and-one-half years of parole ineligibility.
Ibid. This aggregate sentence was composed of a persistent offender extended term of eighteen years for second degree robbery, subject to a No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, parole ineligibility term, and a consecutive ten-year term with a five-year period of parole ineligibility for second degree eluding. State v. Thomas, 195 N.J. 431, 433 (2008) (Thomas II).
The appellate history of the case has been protracted. In an opinion dated July 26, 2005, this court held that hindering apprehension should have been charged as a lesser-included offense of second degree robbery. Therefore, we reversed the robbery conviction and remanded for a new trial on that charge.
State v. Thomas, No. A-6113-02 (App. Div. July 26, 2005). The Supreme Court reversed and remanded for consideration of defendant's sentencing arguments. Thomas I, supra, 187 N.J. at 138. The trial judge resentenced defendant to an extended term of sixteen years imprisonment subject to a NERA parole ineligibility term on the robbery charge and a concurrent ten- year term of imprisonment on the eluding charge.
Defendant appealed and in an unreported decision, this court vacated the sentence, exercised our original jurisdiction and imposed a sixteen-year extended term on the eluding charge and a concurrent eight-year term subject to a NERA parole ineligibility term on the robbery charge. State v. Thomas, A- 6113-02 (App. Div. July 20, 2007). The Supreme Court held that this court should not have exercised its original jurisdiction and reversed the sentence crafted by this court. Thomas II, supra, 195 N.J. at 437. In doing so, however, the Court acknowledged that the sentencing judge had disregarded the recommendation of the prosecutor as to which count he sought an extended term to apply and held that the judge must explain why he rejected the recommendation of the prosecutor. Id. at 436- 37. Therefore, the Court ordered the sentencing judge to provide "an explanation of why he declined to accept the prosecutor's application to apply the extended term to the eluding count." Id. at 437.
On September 19, 2008, the judge provided his reasons. Finding that he was not required to resentence defendant, but only to provide an explanation for his decision to assign an extended term to the robbery conviction rather than the extended term conviction, he stated:
I specifically chose not to follow that recommendation and instead imposed it on the robbery count. I did that with full knowledge that the robbery count would be pursuant to NERA, and that he ...