On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 96-05-1511.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 27, 2012 -
Before Judges Grall and Alvarez.
Defendant, Abdul-Haqq Salaam, appeals from the July 19, 2010 order denying his motion to correct an illegal sentence. We affirm.
Following a jury trial, defendant was convicted of first-degree armed robbery, N.J.S.A. 2C:15-1, and fourth-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(e). On February 14, 1997, defendant was sentenced to a custodial term of life imprisonment without parole, pursuant to N.J.S.A. 2C:43-7.1, the "Three Strikes Law."
Defendant appealed, and we affirmed in an unpublished decision. State v. Salaam, A-6074-96 (App. Div. Nov. 4, 1998) (slip op. at 6). The Supreme Court denied certification. State v. Salaam, 163 N.J. 78 (2000). Defendant then filed a petition for PCR, denied on May 10, 2002. He appealed the denial of PCR, which we affirmed. State v. Salaam, A-6511-01 (App. Div. Oct. 29, 2003) (slip op. at 2), certif. denied, 179 N.J. 312 (2004).
On September 1, 2009, defendant filed a motion, contending that the imposition of a Three Strikes sentence upon him was error, to correct an illegal sentence. On July 19, 2010, Judge Michael A. Petrolle denied defendant's motion.
Defendant raises the following point on appeal:
BECAUSE DEFENDANT'S PRIOR & CURRENT CRIMINAL CONVICTION OF USING A TOY GUN TO COMMIT ROBBERIES DID NOT EXPOSE HIM TO BEING SENTENCED AS A VIOLENT OFFENDER PURSUANT TO THE GRAVES ACT OR SECOND OFFENDER WITH A FIREARM STATUTES, MEANS THE ILLEGAL SENTENCE COURT SHOULD HAVE GRANTED DEFENDANT'S ILLEGAL SENTENCE MOTION & TO VACATE HIS EXTENDED TERM SENTENCE AS A REPEAT VIOLENT OFFENDER.
A defendant may petition to correct an illegal sentence at any time. State v. Sheppard, 125 N.J. Super. 332, 336 (App. Div.), certif. denied, 64 N.J. 318 (1973); see also Presser & Verniero, Current N.J. Court Rules, comment 1 on R. 3:21-10 (2012).
New Jersey's Three Strikes Law, N.J.S.A. 2C:43-7.1(a), enacted on June 22, 1995, mandates life imprisonment without parole for persons convicted of certain enumerated crimes, who have also been convicted of two or more crimes that are "substantially equivalent to a crime under any of the foregoing sections . . . ." The Three Strikes Law applies to first-degree armed robbery, N.J.S.A. 2C:15-1.
As we have said, defendant challenges the applicability of the Three Strikes Law to his 1997 armed robbery conviction. He bases his argument on the fact that he used a toy gun during the commission of the offense. That factor does not make the sentence illegal, however, as on December 28, 1982, the Legislature "amended N.J.S.A. 2C:11-1[(c)] to define 'deadly weapon' to include any instrument or material which would lead the victim reasonably to believe it to be capable of producing death or serious bodily injury." State v. Hickman, 204 N.J. Super. 409, 415 (App. Div. 1985), certif. denied, 103 N.J. 495 (1986). In other words, defendant's use of a toy gun, as opposed to an actual firearm, ...