On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 06-04-0614.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and C.L. Miniman.
Defendant Eric Adair II pled guilty to one count of conspiracy to commit murder, N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-2, a crime of the first degree, N.J.S.A. 2C:5-4a. The charges against defendant and his two co-defendants arose from a drive-by shooting in which two of the three victims were shot. The car from which the shots were fired was a tan Thunderbird. Defendant entered his guilty plea pursuant to an agreement with the State that called for the dismissal of crimes charged in eleven additional counts of the indictment and a recommendation for a sentence of fifteen years, subject to periods of parole ineligibility and supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2, and restitution. Defendant was sentenced in conformity with that agreement, and the requisite fines, penalties, assessments and fees were imposed.
The factual basis provided by defendant in response to questions from his attorney established the elements of conspiracy to commit murder. On November 13, 2005, defendant and his companions Dashaun Randolph and Joshua Gonzalez were in Jackson and inside a tan car. They had a gun in the car, and they agreed to use that gun with the intent to cause the death of the three occupants of another vehicle. In furtherance of that agreement, the gun was fired and two of the three occupants were shot and wounded.
During a colloquy with defendant, the judge confirmed his understanding of the rights he was waiving by pleading guilty, the penal consequences, as well as the terms of the plea agreement and the sentence it contemplated. Defendant acknowledged his understanding, his ability to read and write English and his eleventh-grade education.
Defendant was eighteen years old at the time of the crime, and he had two juvenile adjudications that the judge deemed minor. The prosecutor conceded that defendant had no ability to pay restitution, and the judge rejected defense counsel's arguments that defendant's age, use of Ecstasy, marijuana and alcohol and willingness to make restitution were circumstances warranting mitigation.
Finding no mitigating factors, the judge based defendant's sentence on three aggravating factors - the nature and circumstances of the crime, the risk that defendant would commit another offense and the need to deter defendant and others from engaging in such conduct. N.J.S.A. 2C:44-1a(1), (3) and (9). He further explained that the lengthy sentence would give defendant the time he needed to think, make choices and free himself from his destructive lifestyle.
Defendant raises three issues on appeal:
I. THE COURT ERRED IN FAILING TO SUPPRESS EVIDENCE OBTAINED IN A WARRANTLESS SEARCH OF DEFENDANT'S VEHICLE.
II. THE COURT ERRED IN ACCEPTING DEFENDANT'S PLEA AGREEMENT.
III. THE SENTENCE IMPOSED WAS EXCESSIVE.
Based on our review of the record and consideration of the arguments presented in Points II and III of defendant's brief, we conclude that those issues are without sufficient merit to warrant ...