On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 08-06-1816 and 08-09-2820.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 26, 2010
Before Judges Skillman and Yannotti.
Defendant was charged with acts of delinquency which, if committed by an adult, would constitute four counts of second-degree robbery, in violation of N.J.S.A. 2C:15-1, and possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5(b). Defendant committed these offenses approximately a year before reaching his nineteenth birthday.
The State made a motion to waive the charges against defendant to the Superior Court, Law Division, for him to be tried as an adult. The Chancery Division, Family Part, granted the State's motion. Thereafter, defendant was indicted for the same offenses with which he had been charged as a juvenile.
Defendant entered into a plea agreement under which he agreed to plead guilty to the charges and the State agreed to recommend concurrent sentences of eight years imprisonment, with the 85% period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for the four robberies, and a concurrent sentence of five years imprisonment, with three years of parole ineligibility, for possession of a handgun without a permit. The trial court accepted defendant's plea and sentenced him in accordance with the plea agreement.
On appeal, defendant presents the following argument:
DEFENSE COUNSEL DEPRIVED DEFENDANT OF EFFECTIVE ASSISTANCE OF COUNSEL AT THE REFERRAL HEARING BY HER FAILURE TO OBTAIN A PSYCHIATRIC EVALUATION. FURTHERMORE, THE WAIVER COURT COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO ORDER A PSYCHIATRIC EVALUATION UNDER R. 5:3-3.
Defendant's argument is clearly without merit and does not warrant discussion. R. 2:11-3(e)(2). We only note that there is no evidence defendant could have found an expert to testify that he could be rehabilitated before his nineteenth birthday, see N.J.S.A. 2A:4A-26, and there is no basis for concluding that even if such an expert could have been found, that the trial court would have found such a probability of rehabilitation and that "the probability of [defendant's] rehabilitation... substantially outweighs the reason for [his] waiver" to adult court for the four robberies and weapons offense. See N.J.S.A. 2A:4A-26.
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