STATE OF NEW JERSEY v. RONALD JAMGOCHIAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0498-04T30498-04T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RONALD JAMGOCHIAN,

Defendant-Appellant.

________________________________

 

Argued: November 9, 2005 - Decided June 9, 2006

Before Judges Kestin and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Morris County, 97-09-00942.

Michael Gross argued the cause for appellant (Joseph S. Murphy, attorney, on the brief).

Frank Muroski, Deputy Attorney General, argued the cause for respondent (Peter C. Harvey, Attorney General, attorney; Mr. Muroski, of counsel and on the letter brief).

PER CURIAM

In a published decision on a prior appeal, State v. Jamgochian, 363 N.J. Super. 220 (App. Div. 2003), we reversed the trial court's denial of defendant's petition for post-conviction relief and remanded the matter for a hearing. At the hearing on remand, Judge Langlois found that, prior to sentencing, defendant had "inquired about the travel restrictions involved in the Community Supervision for Life ("CSL") imposed at sentencing;" that defendant "was misinformed about the CSL travel restrictions by his counsel;" that "nothing in the plea and sentencing hearings would have alerted [defendant] to the CSL travel restrictions;" that defendant "would not have plead guilty had he known about the CSL travel restrictions;" and that "the only remedy available . . . is that [defendant] be permitted to withdraw his guilty plea."

Defendant, however, elected not to withdraw his guilty plea but, instead, applied to the trial court for vacation of the community-supervision-for-life component of his sentence. The trial court, in the same order, entered on March 26, 2004, denied that motion. On reconsideration, in an order entered on September 1, 2004, for reasons expressed in a letter opinion dated August 20, 2004, the trial court again denied defendant's motion to vacate that provision of his sentence. The court rejected defendant's argument that community supervision for life was cruel and unusual punishment under article I, 12 of the New Jersey Constitution and the Eighth Amendment to the United States Constitution.

Defendant suffers from a diagnosed medical condition, primary polycythemia vera, the existence of which predates his conviction. Judge Langlois observed that the illness

has rather dire consequences and there is no cure. There is little research in this country[,] yet some clinical trials and/or experimental treatment exist overseas.

* * *

This is a disease defendant has had for 13 years, well before the crimes he committed against S.S. His medical situation was treated while he was in prison. He has had a kidney transplant. He remains under medical care.

She concluded that the crimes for which defendant had been convicted

certainly justify community supervision for life, to protect society, family, and young women from defendant, even if it means limiting the nature of his future medical treatment.

* * *

It is not unusually cruel. It reflects the need for society to protect itself. It does not shock the conscience of the court to require this defendant to be limited in his freedoms.

Defendant, again positing his need to travel for business as well as for health reasons, appeals from the March 26 and September 1, 2004 orders. Our review of the record in the light of the written and oral arguments advanced by the parties and prevailing legal standards discloses no error on the part of the trial court in determining, as a facial matter, that the sentencing provision at issue does not violate constitutional standards.

In our prior opinion, 363 N.J. Super. at 224-27, we held only that, if the facts alleged were established, defendant was entitled to withdraw his guilty plea to two second-degree crimes, sexual assault (N.J.S.A. 2C:14-2c(1)) and possession of a weapon by certain persons not to have weapons (N.J.S.A. 2C:39-7). At the ensuing hearing, the facts were established and the remedy was afforded, but defendant rejected it. He has elected, instead, to challenge, directly, the statute establishing community supervision for life. As we have indicated, we are in substantial agreement with Judge Langlois's reasoning that, on its face, the statute embodies no cruel-and-unusual-punishment flaw.

To the extent defendant challenges the statute as it applies to him, rather than on its face, he has failed to exhaust available administrative remedies, and the instant challenge to this sentencing feature on constitutional grounds is premature. In our prior opinion, 363 N.J. Super. at 224-25, we rejected the State's contention "that defendant should have applied to the parole authorities for relief from the travel restrictions rather than filing a petition for post-conviction relief[.]" We made that determination in a very different procedural context than is currently before us. Now that defendant has obtained and rejected the remedy he sought then, he must be taken to have elected the alternative and to have subjected himself, with the requisite knowledge and understanding, to the administrative sway of the parole authorities subject, of course, to judicial review.

The statute that requires the imposition of community supervision for life as a component of the sentence for enumerated crimes, N.J.S.A. 2C:43-6.4, currently provides that such a sentencing element is subject to the continuing "supervis[ion] by the Division of Parole of the State Parole Board," enumerated statutory provisions, . . . and "conditions appropriate to protect the public and foster rehabilitation." N.J.S.A. 2C:43-6.4b. Even before it was amended by L. 2003, c. 267, the statute, in this regard, provided: "Persons serving a special sentence of community supervision shall be supervised as if on parole and subject to conditions appropriate to protect the public and foster rehabilitation."

Before defendant may he heard to argue that the sentence as applied to him violates any constitutional guarantees, he must first apply to the parole authorities, in which the continuing supervisory authority is reposed, for permission to leave the jurisdiction for the special reasons he advances. Only if that permission is denied, or is made subject to unreasonable restrictions, may a court address the argument that the statute is unconstitutional as applied to this defendant.

Accordingly, we affirm the trial court's order of September 1, 2004, without prejudice to defendant's right to seek administrative relief, with a prompt determination on an adequate record, regarding his application to travel for the special reasons he asserts. We do not retain jurisdiction.

 

(continued)

(continued)

6

A-0498-04T3

June 9, 2006