August 5, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HECTOR MARTINEZ, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-02-0806.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 5, 2011
Before Judges Cuff and Fuentes.
Defendant Hector Martinez appeals from the order of the trial court finding him guilty of violating the terms of his probation and sentencing him to a three-year term of imprisonment. This was defendant's second violation of probation. We affirm.
On June 1, 2007, defendant pled guilty pursuant to a negotiated plea agreement to third degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1), and third degree aggravated assault, N.J.S.A. 2C:12-1(b)(7), on his then-girlfriend. On August 3, 2007, the court sentenced defendant to two concurrent five-year terms of probation conditioned upon serving 364 days in the county jail.*fn1 As further conditions of probation, the court ordered defendant to abstain from using alcohol or any illicit substances; submit to urine monitoring and random alcohol/drug screening; be evaluated for substance abuse treatment; obtain a general education degree (GED) within one year of the date of sentencing; pay fines and penalties at the rate of $43 per month; and comply with the standards of probation outlined in N.J.S.A. 2C:45-1, or as otherwise directed by his probation officer.
On March 17, 2009, defendant's probation officer charged him with violating the terms of his probationary sentence by failing to report as directed, testing positive for marijuana, failing to maintain gainful employment, failing to pay the fines and penalties as ordered by the court, and being arrested on January 8, 2009, on a charge of second degree aggravated assault, N.J.S.A. 2C:12-1(b)(1). At a hearing held on July 24, 2009, to adjudicate these charges, the court found defendant guilty of violating the terms of his probation. By way of sentence, the court continued defendant's probationary term, directed him to obtain gainful employment, and ordered him to undergo a substance abuse evaluation.
On December 11, 2009, defendant's probation officer again charged defendant with violating the terms of his probation by being arrested on December 10, 2009, and charged with conspiracy, possession with intent to distribute, distribution of twenty-five pounds of marijuana,*fn2 and possession; failing to report as directed; failing to undergo substance abuse evaluation; and failing to obtain verifiable employment.
A hearing was held on April 5, 2010, to adjudicate these charges. Defendant chose not testify. The court based its findings on the testimony of probation officer Carmen Sanabria, who testified that defendant failed to report to her as directed on October 23, 2009, and on November 16, 2009. Defendant did not provide her any reason or explanation for his absence. With respect to his obligation to obtain employment, the court asked Sanabria whether defendant had given her "any proofs he was seeking employment" or had "interviewed with anybody;" Sanabria answered "no" to both questions.
The court found defendant guilty of violating the conditions of his probation requiring him to report to his probation officer as directed and to obtain employment. At this point, the court "may impose on the defendant any sentence that might have been imposed originally for the offense of which he was convicted." N.J.S.A. 2C:45-3(b). After conducting the analysis required under State v. Baylass, 114 N.J. 169, 178 (1989), and noting that defendant had served 307 days of jail time credits, the court revoked defendant's probation and sentenced him to a term of three years.
Defendant now appeals, raising the following arguments:
THERE WAS NO EVIDENCE TO SHOW THE DEFENDANT WILFULLY FAILED TO GAIN EMPLOYMENT.
POINT TWO TWO ALLEGED MISSED APPOINTMENTS WERE NOT SUBSTANTIAL INEXCUSABLE VIOLATIONS.
We reject these arguments and affirm. The record supports the trial court's decision to revoke defendant's probation and impose the minimum term of imprisonment applicable to the two underlying third degree offenses. State v. Locurto, 157 N.J. 463, 470-71 (1999). This was the second time defendant violated the terms of his probation. He failed to take advantage of prior opportunities to remain in the community and did not come forward with any evidence to rebut the State's proofs showing him to be a poor candidate for continued probation. State v. Reyes, 207 N.J. Super. 126, 139-40 (App. Div.), certif. denied, 103 N.J. 499 (1986), superseded by statute on other grounds, N.J.S.A. 2C:35-14.