STATE OF NEW JERSEY v. LEO REED

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0655-04T40655-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LEO REED,

Defendant-Appellant.

________________________________________

 

Submitted December 14, 2005 - Decided March 29, 2006

Before Judges Wefing, Wecker and Fuentes.

On appeal from Superior Court of

New Jersey, Law Division, Mercer

County, Docket No. 02-09-1246.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Steven M.

Gilson, Designated Counsel, on the

brief).

Peter C. Harvey, Attorney General,

attorney for respondent (Natalie A.

Schmid Drummond, Deputy Attorney

General, of counsel and on the brief).

Appellant filed a pro se supplemental

brief.

PER CURIAM

Defendant Leo Reed pled guilty, pursuant to a negotiated plea agreement, to two counts of second-degree robbery, in violation of N.J.S.A. 2C:15-1, under Mercer County Indictment 02-09-1246; and one count of third-degree burglary under Morris County Indictment No. 02-06-0830, in violation of N.J.S.A. 2C:18-2a(1). Defendant specifically reserved the right to appeal the trial court's denial of his motion to suppress incriminating statements he made after his arrest on an outstanding warrant issued by the Trenton Municipal Court. The guilty plea was reviewed and accepted by Judge Mathesius in Mercer County.

In exchanged for this guilty plea, the State agreed to recommend that defendant be sentenced to consecutive terms of seven and one-half years on the two counts of robbery, for a total of fifteen years. This sentence was also subject to the provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2., requiring defendant to serve 85% of the total fifteen-year term before becoming eligible for parole, and imposing consecutive three-year periods of parole supervision on each of the second-degree robbery counts. As to the third-degree burglary charge, the court sentenced defendant to a five-year term of imprisonment, with two years of parole ineligibility, to run concurrently with the sentence imposed for the robberies.

Defendant now appeals, raising the following arguments:

POINT ONE

DEFENDANT WAS ILLEGALLY ARRESTED, IN VIOLATION OF THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION, BECAUSE THE COURT RULES GOVERNING THE EXECUTION OF THE TRENTON ARREST WARRANT WERE IGNORED; THEREFORE, DEFENDANT'S CONSEQUENT CONFESSION SHOULD HAVE BEEN SUPPRESSED, AND HE MUST BE ALLOWED TO RETRACT HIS CONDITIONAL GUILTY PLEAS.

POINT TWO

DEFENDANT'S WARRANTLESS ARREST AS TO THE ROBBERIES LACKED PROBABLE CAUSE, IN VIOLATION OF THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION; THEREFORE, DEFENDANT'S CONSEQUENT CONFESSION SHOULD HAVE BEEN SUPPRESSED, AND HE MUST BE ALLOWED TO RETRACT HIS CONDITIONAL GUILTY PLEAS.

POINT THREE

DEFENDANT'S MATTER MUST BE REMANDED FOR RESENTENCING BECAUSE THE LOWER COURT FAILED TO PROVIDE A FACTUAL BASIS SUPPORTING THE FINDING OF AGGRAVATING FACTORS AT SENTENCING. (Not Raised Below)

We reject the arguments made on Points I and II, and affirm substantially based on the factual findings and legal conclusions reached by Judge Mathesius in his undated memorandum of opinion in support of his January 12, 2004 order denying defendant's motion to suppress.

As to Point III, the State concedes that, at the sentencing hearing, the court did not indicate the specific aggravating and mitigating factors in support of the sentence imposed. Articulation of these factors at the sentencing hearing is legally required by both the Criminal Code and the Rules of the Court. N.J.S.A. 2C:43-2e; R. 3:21-4(g). The Judgment of Conviction ("JOC"), signed by the judge the day after the sentencing hearing, reflects that he found aggravating factors (3) the risk that defendant would commit another offense; (6) the extent of defendant's criminal record; and (9) the need to deter defendant and others from violating the law. N.J.S.A. 2C:44-1a. The judge did not find any mitigating factors.

We are satisfied that the court's failure to orally state the relevant aggravating factors does not require that we vacate the sentence and remand for a new sentencing hearing. The record before us, including the pre-sentence investigation report prepared by the probation department, fully supports the judge's findings reflected in the JOC. State v. Mosch, 214 N.J. Super. 457, 463 (App. Div. 1986), certif. denied, 107 N.J. 131 (1987).

Affirmed.

 

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A-0655-04T4

March 29, 2006