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State v. Derose

April 14, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JAMES A. DEROSE, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-04-0470.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: March 17, 2010

Before Judges Cuff and Payne.

A jury found defendant James A. DeRose guilty of four counts of third degree theft by deception, N.J.S.A. 2C:20-4 (Counts One through Four); one count of second degree eluding, N.J.S.A. 2C:29-2b (Count Five); and one count of fourth degree resisting arrest, N.J.S.A. 2C:29-2a (Count Eight). Defendant was sentenced to an extended prison term of eighteen years with a six-year period of parole ineligibility on the eluding conviction. On direct appeal, we reversed the four theft by deception convictions, but affirmed the eluding and resisting arrest convictions. State v. DeRose, A-5714-05 (App. Div. Feb. 26, 2008) (slip op. at 28). Following remand, defendant was resentenced, pursuant to State v. Pierce, 188 N.J. 155 (2006), on the eluding charge*fn1 to a seventeen-year term of imprisonment with a five-and-one-half-year period of parole ineligibility. It is from this order that defendant now appeals.

On appeal, defendant raises the following arguments:

POINT I

DUE TO PROCEDURAL AND SUBSTANTIVE DEFECTS IN THE RE-SENTENCING PROCEEDING, THE APPELLANT IS ENTITLED TO HAVE THE EXTENDED TERM VACATED, AND THE MATTER REMANDED.

A. The State Has Not Established That It Served The Motion For An Extended Term [on] Appellant's Trial Counsel And The Appellant Within Fourteen Days Of The Jury Verdict.

B. Appellant's 2008 Motion Should Have Been Considered As Being Uncontested Inasmuch As The State Failed To File A Response.

C. The Lower Court Misapplied State v. Pierce.

D. The Court's Failure To Afford Appellant His Right Of Allocution Mandates A Remand.

We vacate the sentence imposed and remand for resentencing consistent with the terms of this opinion.

The seventeen-year term of imprisonment for second degree eluding is a discretionary persistent offender extended term imposed pursuant to N.J.S.A. 2C:44-3a. Imposition of a such a term is initiated by the prosecutor. N.J.S.A. 2C:44-3. Rule 3:21-4(e) provides that the application shall be in the form of a motion filed with the court within fourteen days of the return of the verdict. The time for ...


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