On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 10-11-1151.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 5, 2012
Before Judges Axelrad and Nugent.
Following defendant's guilty plea to violating a condition of his special sentence of parole supervision for life, the court sentenced him to a one-year prison term and imposed mandatory assessments and penalties. In this appeal, defendant submits the following contention for our consideration:
THIS MATTER MUST BE REMANDED FOR A HEARING TO DETERMINE IF [DEFENDANT] ENTERED INTO HIS PLEA KNOWINGLY AND VOLUNTARILY.
After considering the record in light of defendant's contention, we affirm.
Defendant pled guilty to the sole count of an indictment charging him with "Violation [of] Community Supervision for Life [(CSL)]," N.J.S.A. 2C:43-6.4(d). When the plea hearing began, defense counsel informed the court that defendant had been incarcerated for five months and was "looking for an outpatient with a continuation[,]" because "[e]very violation had to do with having . . . a beer or two and . . . it's just going to go on and on and on." Following further negotiations between defendant and the State that took place while the court heard other matters, the parties returned and reported that they had reached an agreement. In exchange for defendant pleading guilty to the sole count in the indictment, the State agreed to recommend a one-year prison term.
During the plea colloquy, in response to his attorney's questions, defendant recounted that he had been placed in CSL in 2007 and knew that he "had to follow their rules"; and on August 31, 2010, he had two bottles of beer in the refrigerator and was using cocaine. In response to questioning by the court, defendant also acknowledged that as a condition of his CSL, he was not supposed to have any alcohol. Defendant wanted to provide an explanation, but his attorney prevented him from doing so and informed the court that the "explanation" was "not relevant to this plea."
When he returned for sentencing, defendant was represented by new counsel. After discussions about other matters, the following colloquy occurred:
[DEFENSE COUNSEL]: And finally, the defendant claims to me today -- I don't know if this was ever raised to [previous counsel], but his reading of Jamgochian[*fn1 ] is that he can't be prohibited from drinking alcohol, which is I believe the violation, the substantive violation, for which he pled guilty.
THE COURT: And how does he feel Jamgochian reaches that conclusion?
DEFENDANT MILES: Ma'am, from what I understand, the State Supreme Court said that a parole officer or a supervisor cannot issue additional restrictions without due process. They have to have a hearing to do that. I was never accorded ...