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State v. Clarity

Superior Court of New Jersey, Appellate Division

November 6, 2019

STATE OF NEW JERSEY, Plaintiff-Respondent,
MICHAEL CLARITY, Defendant-Appellant.

          Argued October 16, 2019

          On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 13-10-0621.

          Margaret Ruth McLane, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Tamar Yael Lerer, Assistant Deputy Public Defender, of counsel and on the briefs).

          Paul Henry Heinzel, Assistant Prosecutor, argued the cause for respondent (Michael H. Robertson, Somerset County Prosecutor, attorney; Paul Henry Heinzel, of counsel and on the brief).

          Before Judges Fisher, Accurso and Gilson.


          FISHER, P.J.A.D.

         In this appeal, we again consider the State's pursuit of an extended term sentence based on its claim that defendant is a persistent offender under N.J.S.A. 2C:44-3(a). In a prior appeal, we reversed and remanded for resentencing because the sentencing judge erroneously held that defendant was "last confine[d]" within ten years of the offense by equating "probation" with "confinement." State v. Clarity, 454 N.J.Super. 603, 611 (App. Div. 2018). Following our remand, the State offered evidence - not previously presented - of other incarcerations to demonstrate defendant was confined within ten years of the crime for which he was sentenced. Based on defendant's concession that this new information demonstrated he was eligible for an extended term under N.J.S.A. 2C:44-3(a), the judge imposed the same extended term as before. In appealing this new judgment of conviction, defendant argues the State's information about the "last release from confinement" was inadmissible and could not support a finding that he is a persistent offender. Because of defendant's concession at sentencing, we affirm.

         We start with N.J.S.A. 2C:44-3(a), which permits imposition of a discretionary extended term when a defendant is found to be a persistent offender, which, as relevant here, is an offender whose last of two prior crimes was committed or when the offender's "last release from confinement" - "whichever is later" - occurred within ten years of the crime for which sentence was imposed.

         In the prior appeal, we determined that the trial judge mistakenly sentenced defendant to an extended term on a crime committed here on August 17 and 18, 2013, [1] when it was established that defendant's last prior crime occurred in Florida on July 26, 2003, slightly more than ten years before. Defendant was sentenced in Florida on the July 2003 offense to a three-year probationary term that did not include incarceration; notwithstanding, the sentencing judge held that being on probation is the equivalent of being "confined" and concluded defendant's "last release from confinement" - the date on which the probationary term ended - must have occurred within ten years. We rejected the judge's interpretation of "confinement" and remanded for resentencing. Clarity, 454 N.J.Super. at 611.

         In deciding the first appeal, we also said that if "all that was before us" was the meaning of "confinement" and the significance of the probationary term, we would have "simply reverse[d] and remand[ed] for resentencing without application of N.J.S.A. 2C:44-3(a)." Id. at 612. But, as we observed in the third section of our prior opinion, the State had argued "and provided some evidence" to suggest defendant was "briefly detained in Florida in 2006" for having violated a condition of the probationary term. Ibid While we questioned whether a brief detention in such circumstances would qualify as "confinement," we determined the best course - because facts about this 2006 incident "were not presented to the sentencing judge," ibid., although mentioned in the presentence report, id at 612 n.8, and because these allegations were not then relied on by the sentencing judge - was to remand for resentencing and, if necessary, "further development" of the State's claim about the brief 2006 detention. Id at 612.

         At resentencing, the State provided, as we allowed, additional information about defendant's 2006 Florida arrest. That information suggested defendant was then arrested for a violation of probation and was detained for eighteen days before the judge imposed a six-month extension of the preexisting probationary term. The State also provided the sentencing judge with information about defendant's later scrapes with the Florida criminal justice system. The State referred to defendant's arrests in Florida:

• on March 1, 2007, for a violation of probation for which, on June 11, 2007, he was sentenced to a thirty-month prison term; defendant was released from prison on April 26, 2009.
• on September 10, 2010, for solicitation of prostitution for which, on October 4, 2010, he was sentenced to a twenty-five-day jail sentence.

         This information about a second violation of probation in 2007 and a prostitution solicitation conviction in 2010 was never previously presented to the sentencing judge, never asserted by the State as a ground for finding defendant to be a persistent offender in its 2016 motion for an extended term, and never presented to us during defendant's first appeal. The submission of information about the 2007 and 2010 incidents also arguably exceeded the scope of the mandate expressed in our earlier opinion. ...

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