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State v. Cerato

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 7, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOSEPH CERATO, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 89-06-00127.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 19, 2010

Before Judges Graves and Kestin.

Defendant Joseph Cerato appeals from an order entered on January 29, 2009, denying his motion for reconsideration of his sentence. We affirm.

On October 29, 1990, almost twenty years ago, defendant pled guilty to murder and conspiracy to commit murder.

Defendant's girlfriend, Audrey Wilson, was a co-defendant. As noted by the sentencing judge, "defendant agreed to kill the mother of his girlfriend with the incentive that he would receive part of the inheritance and insurance money."

We have not been provided with a copy of the plea papers or a transcript of the plea hearing. However, according to the State, defendant entered a conditional guilty plea under Rule 3:9-3(f), which preserved his right to appeal from the order denying his suppression motion. On December 21, 1990, after merging defendant's conspiracy conviction into his murder conviction, the court sentenced defendant to life in prison with thirty years of parole ineligibility for murder.

As noted by the State, defendant's direct appeal "was limited to the denial of his motion to suppress." This court affirmed the trial court's ruling, and the Supreme Court denied defendant's petition for certification. State v. Cerato, 133 N.J. 438 (1993).

Defendant also filed a petition for post-conviction relief alleging his trial counsel was ineffective. The trial court denied defendant's petition on November 27, 2008, and he appealed. We affirmed the trial court's decision, State v. Cerato, No. A-4103-07 (App. Div. Apr. 14, 2009), and defendant's petition for certification to the Supreme Court was denied. State v. Cerato, 200 N.J. 368 (2009).

In the present matter, we have not been provided with a copy of the motion that defendant filed with the trial court. See Pressler, Current N.J. Court Rules, comment 1 on R. 2:6-1 (2010) ("Clearly, filed documents in the action bearing on the issues on appeal are required to be included in the appendix."). However, in a supplemental pro se brief filed in the Law Division, defendant compared his sentence to other sentences imposed in other murder cases and he argued there was a "lack of uniformity in sentences for defendants convicted of murder."

Based on the sentences imposed in other murder cases, defendant asked the court to order "full discovery" and an "evidentiary hearing" to determine whether N.J.S.A. 2C:11-3(b)(1) is constitutional. In the alternative, defendant asked the court to "modify his sentence to 30 years without parole." On appeal to this court, defendant contends he is entitled to "full discovery and an evidentiary hearing" on the issue of sentencing disparity.

The trial court treated defendant's disparate sentence argument as an untimely motion for reconsideration of his sentence under Rule 3:21-10(a) and, in our view, the matter was correctly decided. The record does not support defendant's claim that he received an "illegal" sentence, and he does not argue that his sentence is unjustifiably disparate when compared with that of co-defendant Wilson. See State v. Roach, 146 N.J. 208, 233 (1996) ("If the co-defendant is sufficiently similar, the court must give the sentence imposed on the co-defendant substantive weight when sentencing the defendant in order to avoid excessive disparity."). Moreover, defendant waived his right to challenge the constitutionality of N.J.S.A. 2C:11-3(b)(1) when he entered his guilty plea. See State v. Raymond, 113 N.J. Super. 222, 225-27 (App. Div. 1971) (noting that defendant waived his right to challenge the constitutionality of the abortion statute he was charged with violating when he pled guilty to conspiring to commit abortion).

Affirmed.

20100707

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