STATE OF NEW JERSEY v. DENISE KNOWLES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2508-04T42508-04T4

STATE OF NEW JERSEY,

Plaintiff-Appellant/

Cross-Respondent,

v.

DENISE KNOWLES,

Defendant-Respondent/

Cross-Appellant.

__________________________________________________

 
Argued on the April 5, 2006 Sentence Oral

Calendar - Decided April 24, 2006

Before Judges Stern and King.

On appeal from the Superior Court of New

Jersey, Law Division, Middlesex County,

MID 1601-12-03-I.

Simon Louis Rosenbach, Assistant Middlesex County Prosecutor, argued the cause for appellant/

cross-respondent (Bruce J. Kaplan, Middlesex County Prosecutor, attorney).

Joel Harris, Designated Counsel, argued the

cause for respondent/cross-appellant (Yvonne

Smith Segars, Public Defender, attorney).

PER CURIAM

The State appeals from a four-year sentence with an 85% parole ineligibility term under the No Early Release Act (NERA) following defendant's guilty plea to second degree aggravated assault. Defendant also pled guilty to two other charges, one of which was merged into third degree possession of a knife for unlawful purposes (count two), for which defendant received a then-presumptive four-year sentence. Defendant cross-appeals.

The guilty plea was entered after jury selection had commenced. Defendant acknowledged cutting Monique Soto with a box cutter and that she sustained a "fourteen or so inch cut on her thigh." The victim received approximately 137 stitches on her left leg. She now walks with a limp and has a "permanent scar" as a result of defendant's act. Defendant is a thirty-six year old woman who had just broken up with her boyfriend who she suspected of seeing the victim. She had no prior record.

The plea judge indicated that, subject to review of the presentence report, see R. 3:9-3(c), he would impose a five-year sentence with NERA and concurrent presumptive sentences on the other two counts. Defendant understood that she was facing a maximum sentence of five years with 85% to be served before parole eligibility. Before the trial court, the Assistant Prosecutor indicated that "[t]he State's position is that Ms. Knowles is pleading open to the indictment with no plea recommendation from the State," and that "the State still will ask for the presumptive term [of seven years] at the time of sentencing." However, he acknowledged that defendant would have the right to "take back her plea" if she got more than five years in custody. See R. 3:9-3(c). Defendant also acknowledged the three-year parole supervision and obligation to serve that on a violation.

At sentencing, the judge found that the mitigating outweighed the aggravating factors and imposed four years in the custody of the Commissioner of Corrections with NERA and three years of parole supervision for the aggravated assault. The judge also merged the weapons offenses, and imposed a concurrent four-year sentence on count two.

Under State v. Megargel, 143 N.J. 484, 496 (1996), the sentencing court must be "clearly convinced that the mitigating factors substantially outweigh the aggravating ones and that the interest of justice demand a downgraded sentence."

The judge appropriately used the Megargel standard in imposing the downgraded sentence. He found the existence of aggravating factors three and nine, and mitigating factors seven, ten and eleven. See N.J.S.A. 2C:44-1a, b. He stated that the downgraded sentence was "in the interest of justice" and "that the mitigating outweigh the aggravating." At the end of the proceedings, the judge stated to defendant:

The prosecutor has been pushing for at least five years. I gave you four years mainly because you never had an offense in the past. You are very remorseful. And you do, you are a mother, and you do have this drug problem that you're struggling with, that you are trying to deal with. That is the best I can do. Ms. Knowles.

The sentencing court did not impose a non-custodial or probationary sentence on the second degree crime. See N.J.S.A. 2C:44-1f(2). Hence, we are not dealing with a crime for which the presumption of imprisonment, N.J.S.A. 2C:44-1d, was overcome. See Megargel, supra, 143 N.J. at 500-502.

Our scope of review is the same on the State's appeal of a downgraded custodial sentence as the defendant's claim on appeal that a sentence is excessive. See State v. Roth, 95 N.J. 334, 360, 365-66 (1984); see also State v. Evers, 175 N.J. 355, 386-87 (2003); Megargel, supra, 143 N.J. at 493-94 (applying Roth standard of review to State's appeal of trial court's downgrade of defendant's custodial sentence from first to second degree), 498-502. Accordingly, we find no basis for disturbing the sentence imposed.

In light of our disposition, we do not consider the fact the record reveals no setting of bail pending appeal and the sentence has been executed without a waiver on the record. See N.J.S.A. 2C:44-1f(2); R. 2:9-3(d). We reject both the appeal and cross-appeal, and affirm the judgment.

Affirmed.

 

Neither side challenges the merger of count three into count two, or the lack of merger of count two into count one.

Although he did not expressly state he was "clearly convinced" of the same, his findings suggested that he was.

(continued)

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A-2508-04T4

April 24, 2006