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State of New Jersey v. J.M

July 20, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
J.M., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 04-04-0801.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 4, 2011

Before Judges Sabatino and Alvarez.

Defendant appeals the denial of his application to withdraw a guilty plea. For the reasons that follow, we affirm.

On November 14, 2006, in Mercer County, defendant J.M. entered a guilty plea to charges of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a), and second-degree sexual assault, N.J.S.A. 2C:14-2(c). In accord with the plea agreement, defendant received a sentence of twelve years imprisonment on the first-degree charge and ten years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a), concurrent on the second-degree crime. The victim was his step-daughter, N.D., whom defendant sexually assaulted from age eleven to age sixteen. In April 2004, simultaneous to the issuance of the Mercer County indictment, defendant was indicted in Ocean County for one count of first-degree aggravated sexual assault and one count of second-degree child endangering, N.J.S.A. 2C:24-4(a). At some unspecified time defendant fled the jurisdiction to Florida and was not apprehended until nearly two years later.

The Ocean County indictment was intended to be consolidated with the Mercer County matter, Rule 3:15-1(a), but was overlooked when the Mercer County plea agreement was negotiated. As a result, defendant had begun serving his Mercer County sentence when the Ocean County authorities realized the single incident indictment was still pending.

As a result, defendant's attorney filed a motion to dismiss the indictment based on mandatory joinder, Rule 3:15-1(b), which was heard and denied on November 14, 2007. That same day, defendant entered a guilty plea to first-degree aggravated sexual assault, and was sentenced to twelve years concurrent to the Mercer County sentence.

In order to make the sentence the day-for-day equivalent of the Mercer County sentence, as counsel agreed that both matters should have been resolved simultaneously, defendant was given the additional benefit of 1336 days of "credit" - including time he had already served on the Mercer County sentence. After the court reviewed the terms of the plea with defendant, and his satisfaction with the services rendered by his attorney, defendant and his attorney engaged in the following colloquy:

Q. [B]etween the dates of June 1, 1997, and January 1, 1998, you were in the Township of Lakewood?

A. Yes, I was.

Q. And at that time did you commit an act of sexual penetration, that is sexual intercourse, on an individual identified as [N.D.]?

A. Yes, I do.

Q. Who was less than 13 years old at the time?

A. Yes, I ...


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