NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 12, 2013
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-06-0881.
D.D.Z., appellant, pro se.
Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Ashrafi and St. John.
In a prior appeal, we affirmed defendant's conviction at trial for sexual crimes committed upon a minor but remanded for re-sentencing. State v. D.D.Z., No. A-3328-04 (App. Div. Feb. 25, 2008). Defendant now appeals his re-imposed sentence of seventeen years imprisonment and eight years of parole ineligibility. We affirm.
On June 27, 2003, defendant was indicted for second-degree sexual assault upon a child less than thirteen years old, N.J.S.A. 2C:14-2(b), and for third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). On June 24, 2004, a jury convicted defendant on both charges. Following evaluation for sexual offender treatment, defendant was originally sentenced on January 28, 2005. The trial judge granted the State's motion to sentence defendant as a persistent offender pursuant to N.J.S.A. 2C:44-3(a) based on his 1988 conviction for endangering the welfare of a child, N.J.S.A. 2C:24-4(a), and his 2004 conviction on a federal charge of using an interstate facility to entice a minor for purposes of sexual activity, 18 U.S.C.A. § 2422(b).
On the present indictment, the trial judge sentenced defendant on the first count to an extended term of seventeen years with an eight-year period of parole ineligibility, and on the second count to a concurrent term of five years with two-and-a-half years of parole ineligibility. Defendant was found to be eligible and amenable to sexual offender treatment, and the sentence was to be served at the Adult Diagnostic and Treatment Center for sexual offenders at Avenel. Also, the state sentence was to run consecutively to the federal sentence defendant was then serving.
During the pendency of defendant's appeal before us, the Supreme Court issued its decision in State v. Pierce, 188 N.J. 155 (2006), with respect to persistent offender sentencing. Subsequently, we affirmed the jury's verdict of guilty on the two charges, but we remanded for re-sentencing in accordance with the mandate of Pierce. D.D.Z., supra, slip op. at 18-19.
Defendant's re-sentencing was delayed while he completed service of his federal sentence in another state. Upon his return to New Jersey, and certain proceedings that are not relevant to the current appeal, he was re-sentenced by a different judge on March 2, 2012, the original trial judge having retired from the bench.
On re-sentencing, the court again determined that defendant was a persistent offender under N.J.S.A. 2C:44-3(a). After weighing the applicable aggravating factors and the absence of any mitigating factors, the court imposed the same sentence of seventeen years imprisonment with an eight-year parole ineligibility period on the first count, and a concurrent ...