On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 06-12-1933-A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 7, 2010 - Decided
Before Judges Parrillo and Skillman.
Defendant, Eric D. Stahl, pled guilty to second-degree endangering the welfare of a child after disseminating a photograph or reproduction that depicted a child engaging in a prohibited sexual act, in violation of N.J.S.A. 2C:24-4b(5)(a).
In exchange for his plea, the State agreed to recommend that defendant be sentenced to a term within the range for third-degree offenses. On March 16, 2007, having found that the mitigating factors, N.J.S.A. 2C:44-1b(7) and (11), substantially outweighed the only applicable aggravating factor of a need to deter, N.J.S.A. 2C:44-1a(9), and, therefore, that a downgrade of the offense was permitted under N.J.S.A. 2C:44-1f(2), the judge sentenced defendant, in accordance with the plea agreement, as a third-degree offender, but imposed a four-year term of probation conditioned on serving 364 days in the county jail.
The State appealed, maintaining that the judge erred by sentencing defendant to a probationary rather than a custodial term, which was not permitted by the presumption of incarceration. We agreed and reversed, finding that the applicability of the presumption of incarceration is determined by the offense for which a defendant is convicted and that the presumption in this case had not been overcome by any "extraordinary" or "rare" circumstances. State v. Stahl, No. A-3803-06 (App. Div. May 7, 2008) (slip op. at 11, 16-17). We also noted that a trial judge may not impose a probationary term conditioned on a period of incarceration in county jail unless the presumption for imprisonment has been overcome, citing State v. O'Connor, 105 N.J. 399, 405-10 (1987). Id. at 12. We, therefore, remanded for the re-sentencing of defendant to a term of incarceration within the range applicable to third-degree offenses. Id. at 17.
On remand, the judge, in accordance with our opinion, re-sentenced defendant to a three-year term of incarceration. Defendant now appeals, arguing:
I. State v. Roth and State v. Hodge do not Constrain This Court's Discretion in This Matter.
II. New Jersey Dons the Emperor's Clothes to Declare That Harsh Conditions in County Jails is Not Imprisonment.
III. Mr. Stahl Should Not, Under the Principal [of] Fundamental Fairness[,] Be Forced to Serve Another Sentence.
We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel, and are satisfied that none of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Suffice it to say, defendant received the absolute minimum term of incarceration for a third-degree crime, consistent with our prior opinion. The sentence does not shock the judicial conscience and is well within the court's discretion. State v. Roth, 95 N.J. 334, 363 (1984). Moreover, as the State ...