On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Camden County, Indictment No. 07-05-1715.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Graves and Newman.
Defendant pled guilty to three counts of an indictment, each alleging second-degree aggravated assault against his wife.
The record reflects that his total exposure on the indictment was 511 years, 394 without parole eligibility, and a fine of $6,275,000. The State recommended a maximum sentence of twenty years in the custody of the Commissioner of the Department of Corrections based on three consecutive sentences of seven, seven and six years each with eighty-five percent to be served before parole eligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant received that custodial sentence.
The factual basis for the plea revealed that the fifty-one year old defendant beat his wife, starting after twenty-five years of marriage. He also repeatedly burned her with the rack of a toaster oven, causing serious bodily injuries to different parts of her body. Defendant admitted that he burned his wife with the hot toaster oven racks on the legs and arms on the three occasions and that he had burned the same areas of her body repeatedly. At defendant's sentencing hearing, his wife stated that "I remember every day how he would hold the oven rack so hard on my arm and my leg that my skin would sizzle, then melt, then rip off and stick to the metal racks. The sound and smell of my flesh burning, no words can possibly describe it."
At sentencing, defendant argued that the terms on each sentence should be the minimum if consecutive sentences were imposed and the NERA periods of parole supervision should run concurrently, even if the sentences were made to be served consecutively. The judge asked defendant if he understood the parole supervision could be nine years.*fn1
Defendant appealed from the sentence imposed. By order issued after argument on the Sentence Oral Argument calendar, we affirmed the sentence, stating:
Having considered the record and argument of counsel, and it appearing that the issues on appeal relate solely to the sentence imposed, we are satisfied that the sentence is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion. State v. Natale, 184 N.J. 458 (2005); State v. O'Donnell, 117 N.J. 210 (1989); State v. Ghertler, 114 N.J. 383 (1989); State v. Roth, 95 N.J. 334 (1984).
. . . We also conclude that, while the negotiated plea agreement included the waiver of defendant's right to argue for concurrent sentences, the judge expressly stated at the time of sentencing that although defendant "stipulated that these would be consecutive sentences, each and every one of them, . . . [and] waived any objection or appeal based on [State v. Yarbough, 100 N.J. 627 (1985)], . . . even applying those standards, it would appear that to a large degree, had you gone to trial, consecutive sentences would, in fact, have been imposed." The judge was satisfied that the three consecutive sentences were warranted by the "three separate and distinct chronologies" of aggravated assaults upon his wife, and repeated that "although you did waive Yarbough, the Court finds that consecutive sentences would be justified anyhow." Under these circumstances we decline to vacate the consecutive sentences imposed under the negotiated disposition (which also resulted in the dismissal of forty seven counts) or remand the matter for re-sentencing, whether or not the State would have the right to withdraw its offer. Compare, State v. Gibson, 68 N.J. 499 (1975) and R. 3:9-3(c), (d).
In the absence of an express challenge in these proceedings, we do not address the imposition of consecutive ...