July 26, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DONALD V. DAYE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 01-06-865.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 12, 2011
Before Judges Payne and Koblitz.
In 2001, defendant, Donald V. Daye, was charged with three counts of attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3, second- degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a, three counts of fourth-degree aggravated assault (pointing), N.J.S.A. 2C:12-1b(4), third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, third-degree hindering apprehension, N.J.S.A. 2C:29-3b(1), fourth-degree resisting arrest, N.J.S.A. 2C:29-2a, and third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35- 10a(1), as the result of an incident, occurring on April 10, 2001, when defendant shot at three individuals in a sports utility vehicle, fortunately hitting none of them. Following trial, defendant was acquitted of the attempted murder charges, but convicted of the remainder. He was given a ten-year sentence subject to the eighty-five percent parole ineligibility period of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the charge of possession of a weapon for an unlawful purpose.
He was also given a consecutive four-year sentence on the drug offense. Concurrent sentences were imposed on the remaining charges.
On appeal, defendant challenged his conviction and sentence, arguing with respect to his sentence that it was excessive, the imposition of the period of parole ineligibility pursuant to NERA was improper, that the trial judge erred in imposing a sentence greater than the presumptive for the unlawful possession of a weapon, and that the judge erred in imposing consecutive sentences on the drug and weapons convictions. We affirmed defendant's convictions. State v. Daye, No. A-4119-03 (App. Div. Mar. 23, 2006) (slip op. at 10- 18).
We also affirmed the application of NERA to his conviction for possession of a weapon for an unlawful purpose. Id. at 18- 21. In doing so, we noted that, as enacted in 1997, NERA provided for an eighty-five percent period of parole ineligibility upon proof that the defendant "uses or threatens the immediate use of a deadly weapon." Id. at 19-20. Although NERA as amended, effective June 29, 2001, would not be applicable to defendant's crimes, we held that the prior version of the statute was operative in this case because defendant's crimes took place nearly three months before the 2001 amendment became effective. Id. at 20 (citing State v. Parolin, 171 N.J. 223, 233 (2002)). We held further:
The determination whether the offense in question was a "violent crime," and therefore subject to NERA, was a question for the jury that required its finding beyond a reasonable doubt. State v. Johnson, 166 N.J. 523, 543-44, 549 (2001). Here, the jury's verdict on the three aggravated assault counts was based upon its finding, beyond a reasonable doubt, that defendant knowingly pointed a handgun at each of three victims with reckless disregard for human life. The jury also found that defendant possessed the gun with an unlawful purpose to use it against these victims. The judge expressly instructed the jury that "the State contends the defendant's unlawful purpose in possessing the firearm was to use the weapon to cause injury and/or death to either one of the alleged victims . . . ." We assume that the jury followed the judge's instruction not to consider any other unlawful purpose, State v. Marshall, 173 N.J. 343, 355 (2002) (citing State v. Manley, 54 N.J. 259, 271 (1969)), thus satisfying the required jury finding that defendant committed a "violent" second-degree crime subject to NERA.
[Id. at 21 (footnote omitted).]
However, we vacated defendant's ten-year sentence for possession of a weapon for an unlawful purpose, and remanded for resentencing pursuant to State v. Natale, 184 N.J. 458, 465-66 (2005). Additionally, we required reconsideration of defendant's consecutive sentence for his drug conviction, noting that no reasons for that consecutive sentence had been given.
Id. at 22.
Upon resentencing, the judge reduced the sentence for the weapons offense to seven years, but still applied NERA. He sentenced defendant to a concurrent four-year term on the drug offense. Thereafter, defendant filed a motion to correct the sentence, which was denied. Defendant then appealed. At defense counsel's request, the matter was removed from the excessive sentence calendar and scheduled for consideration of the merits of defendant's legal arguments.
On appeal, defendant raises the following points:
I. UNDER THE FORMER VERSION OF THE NO EARLY RELEASE ACT, DAYE SHOULD NOT HAVE BEEN SUBJECT TO AN 85% PAROLE DISQUALIFIER WITHOUT A SPECIFIC FINDING BY THE JURY BEYOND A REASONABLE DOUBT THAT DAYE HAD MET ALL OF THE NECESSARRY ELEMENTS.
A. NERA Does Not Apply to Daye.
B. Retroactivity Is Not At Issue Here Because Natale Did Not Set Forth A New Rule of Law.
II. DAYE WAS NOT PROVIDED AN ADEQUATE NERA HEARING PURSUANT TO N.J.S.A. 2C:43-7.2(e) IN VIOLATION OF HIS DUE PROCESS RIGHTS AND, THEREFORE, DAYE'S NERA SENTENCING SHOULD BE VACATED.
We have been informed that defendant has now served his sentence; his concern lies with the requirement that he be subject to three years of parole supervision.
We find defendant's arguments on appeal to be without sufficient merit to warrant discussion in a written opinion, Rule 2:11-3(e)(2), and adhere to our prior opinion on the NERA issues that have been raised.
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