On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 98-04-0591.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically on December 16, 2010
Before Judges Grall and LeWinn.
Defendant appeals from the April 3, 2008 amended judgment of
conviction entered on his motion to vacate an allegedly
illegal sentence originally imposed on January 6, 2000.*fn1
For the reasons that follow, we affirm.
The pertinent facts are as follows. Tried to a jury in 1999, defendant was convicted of two counts of first-degree armed robbery, N.J.S.A. 2C:15-1; third-degree receiving stolen property, N.J.S.A. 2C:20-7; and second-degree eluding, N.J.S.A. 2C:29-2(b). On the armed robbery counts, defendant received two concurrent twenty-year terms of imprisonment, each with a ten-year parole ineligibility period under the Graves Act, N.J.S.A. 2C:43-6(c), and an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. He received a consecutive ten-year term on the eluding charge and a concurrent five-year term for receiving stolen property.
Defendant appealed, primarily contending that the denial of a jury charge on his NERA counts violated his constitutional rights and that his sentence was manifestly excessive. In a pro se supplemental brief, defendant also challenged certain jury instructions and the out-of-court identification procedures.
We affirmed, and, in language pertinent to this appeal, rejected defendant's NERA argument as follows:
There is no dispute that the trial judge did not specifically charge the jury to find a NERA violent crime predicate. He did, however, charge the elements of first-degree robbery, as well as the elements of accomplice liability. The facts elicited during the trial were clearly sufficient for a jury to find defendant guilty of first-degree robbery beyond a reasonable doubt. [State v. Chamblain, No. A-6897-99 (App. Div. February 25, 2002) (slip op. at 11).]*fn2
We noted that State v. Johnson, 160 N.J. 523, 543 (2001), required that "[a] factual predicate for a NERA sentence must be found by a jury 'beyond a reasonable doubt.'" Id. at 8. We concluded that the evidence in defendant's case satisfied that requirement as it was "clear that [co-defendant] was not only armed with a deadly weapon during the robbery, but he also threatened the victims with it, satisfying the NERA definition of a 'violent crime.'" Id. at 12-13. Therefore, "notwithstanding the fact that the trial court failed to specifically instruct the jury to find the NERA violent crime predicate, the facts adduced at trial establish that the jury made the violent crime finding beyond a reasonable doubt." Id. at 13.
Defendant "also questioned whether the Graves Act violated the principles of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)." Id. at 13. As we noted, "[d]efendant acknowledged, however, that if the trial court's decision to apply NERA is affirmed, the Graves Act issue becomes irrelevant. Since we have concluded the trial court properly applied NERA, we need not address the Graves Act issue." Ibid. The Supreme Court denied defendant's petition for certification on March 20, 2002. State v. Chamblain, 171 N.J. 444 (2002).
On January 3, 2007, defendant filed a motion to correct an illegal sentence. The trial judge agreed that defendant was entitled to re-sentencing under State v. Natale, 184 N.J. 458 (2005), decided after defendant's original sentencing, which instructed sentencing judges to "balance the aggravating and mitigating factors" without reference to the "fixed point of a statutory presumptive." Id. at 488. In sentencing defendant following trial, the judge had expressly referred to the "presumption that [he] would go to prison for [fifteen] years," noting further that "[t]hat presumption [arises] when the aggravating factors so clearly and substantially outweigh the mitigating factors."
On April 3, 2008, the judge re-sentenced defendant to the same sentence originally imposed. The judge found that the jury verdict represented a finding beyond a reasonable doubt that defendant had committed an act of violence consisting of force or threats to the victim. The judge further found that defendant had raised his Graves Act and NERA arguments at trial and on appeal and offered nothing new to warrant a different result on his motion.
The judge determined that the following aggravating factors applied, as they did at the first sentence: number three (the risk that defendant will commit another offense); number six (the extent of defendant's prior criminal record and seriousness of the offense of which he has been convicted); and number nine (the need for deterring defendant and others from violating the law). N.J.S.A. ...