STATE OF NEW JERSEY v. PASCAL DUBOIS

 
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(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0419-03T10419-03T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PASCAL DUBOIS,

Defendant-Appellant.

 

Argued November 30, 2005 - Decided -

January 17, 2006

 
Remanded by Supreme Court - March 8, 2007

Resubmitted April 20, 2007 - Decided -

Before Judges Weissbard, Winkelstein

and Sabatino.

On appeal from the Superior Court of New

Jersey, Law Division, Middlesex County and on remand from the Supreme Court, Indictment

No. 99-12-1435.

Marc J. Friedman argued the cause for appellant (Rich & Friedman, attorneys; Mr. Friedman, of counsel and on the brief).

Joie Piderit, Deputy Attorney General, argued the cause for respondent (Stuart Rabner, Attorney General, attorney; Ms. Piderit, of counsel and on the brief).

PER CURIAM

In State v. DuBois, 189 N.J. 454 (2007), the Supreme Court reversed our unpublished decision awarding defendant a new trial based on what we perceived to be deficiencies in the advice provided to defendant concerning his right to self-representation. The Court concluded that defendant had been adequately advised, and that he knowingly and intelligently waived his right to counsel. Id. at 475. Important for present purposes, the Court remanded the case to us for consideration of certain arguments advanced by defendant in his initial appeal that we did not address in our decision.

We have reviewed our decision and the briefs filed before us and have identified the following issues that we did not resolve: (1) whether the State's "surveillance of [defendant's] library activities" compromised his right to a fair trial because it enabled the prosecutor, acting in concert with the jail warden and librarian, to discover his trial preparation and strategy; (2) whether defendant's right to a fair trial was prejudiced because he was not able to obtain proof of several civil judgments against the State's main witness, defendant's ex-wife, in time to use them for cross-examination at trial because the prison warden, again in concert with the prosecutor, wrongfully withheld his mail; and (3) that his sentence was excessive. All other issues were either addressed or determined to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Concerning the "library surveillance" issue, we concluded as follows:

[T]hese matters are outside the scope of the present record. We note that defendant does not identify the pivotal diary entries that allegedly laid bare his trial strategy. Additionally, as noted by the State, there is no evidence that the librarian shared his diary with the prosecutor.

In any event, defendant is free to raise the argument again and to develop a proper record in advance of a new trial.

We did not address the "mail withholding" issue because we deemed it moot as a result of our now-reversed decision to grant a new trial, nor did we address the sentencing argument advanced by defendant in his pro se supplemental brief.

Defendant was sentenced to a sixteen-year term on his conviction for first-degree aggravated sexual assault, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant claims his sentence was excessive, that the judge failed to fairly apply and balance the aggravating and mitigating factors, and that the State's request for NERA sentencing was arbitrary and in retaliation for his refusal to plead guilty. As to the latter, the NERA term was mandatory. N.J.S.A. 2C:43-7.2d(7). The judge properly found that defendant's offense, committed on August 19, 1999, fell within NERA as of that date. While the statute at that time defined "violent crime" as meaning "any crime in which the actor causes death, serious bodily injury as defined in N.J.S.A. 2C:11-1, or uses or threatens the immediate use of a deadly weapon," it went on to specifically include "any aggravated sexual assault or sexual assault in which the actor uses, or threatens the immediate use of physical force." See State v. Parolin, 171 N.J. 223, 230 (2002). We agree with the State that other counts on which defendant was convicted, such as counts two and three, constitute a jury finding that he used force on the victim during the sexual assault. As such, the judge's imposition of a NERA term did not violate the principles of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). See State v. Johnson, 166 N.J. 523, 544-45 (2001).

That said, since defendant's primary sixteen-year term, as well as several lesser, concurrent terms, exceeded the presumptive term, defendant must be resentenced pursuant to State v. Natale, 184 N.J. 458 (2005). At resentencing, defendant is free to raise his arguments concerning application of the aggravating and mitigating factors.

The library surveillance and mail withholding issues also require a remand, as they cannot be decided on the present record. The trial court will have to conduct a plenary hearing to determine if defendant's rights were violated and, if so, whether those violations might have affected the jury's deliberations. State v. Pillar, 359 N.J. Super. 249, 278-79 (App. Div.), certif. denied, 177 N.J. 572 (2003).

Remanded for further proceedings. We do not retain jurisdiction.

 
 

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A-0419-03T1

May 7, 2007