STATE OF NEW JERSEY v. ANTHONY LAROSE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4740-03T54740-03T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY LAROSE,

Defendant-Appellant.

___________________________________

 

Submitted January 10, 2006 - Decided January 26, 2006

Before Judges Skillman and Payne.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 03-01-0015.

Kevin P. Wigenton, attorney for appellant.

Peter C. Harvey, Attorney General, attorney for respondent (Daniel I. Bornstein, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant was indicted for second-degree burglary, in violation of N.J.S.A. 2C:18-2; second-degree aggravated assault, in violation of N.J.S.A. 2C:12-1b(1); third-degree terroristic threats, in violation of N.J.S.A. 2C:12-3b; fourth-degree contempt, in violation of N.J.S.A. 2C:29-9b; and third-degree criminal mischief, in violation of N.J.S.A. 2C:17-3a(1). Defendant filed a motion to disqualify the Ocean County Prosecutor's Office from prosecuting and the "Ocean County Judiciary" from presiding over the case. The trial court denied the motion by a written opinion. The State filed a motion to disqualify defendant's original trial counsel, which the court granted. Defendant subsequently pled guilty to the burglary and aggravated assault charges pursuant to a plea bargain under which the State agreed to recommend that the sentences on these charges be served concurrently and to dismiss the other charges. Defendant's plea did not reserve the right to appeal from the adverse determination of any pretrial motions, as provided by Rule 3:9-3(f).

In accordance with the plea agreement, the trial court sentenced defendant to concurrent eight-year terms of imprisonment for burglary and aggravated assault, subject to the 85% period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court also ordered defendant to pay $1329 in restitution to the victim. The court dismissed the other charges.

On appeal, defendant presents the following arguments:

I. JUDGE DANIELS COMMITTED REVERSIBLE ERROR IN SETTING FORTH CONFLICT AS TO JAMES N. BUTLER, JR., ESQ.

II. JUDGE DANIELS COMMITTED REVERSIBLE ERROR IN DENYING MOTION FOR COURT/ PROSECUTOR TO RECUSE THEMSELVES.

III. SENTENCE IMPOSED WAS EXCESSIVE IN LIGHT OF WEIGHING OF AGGRAVATING/MITIGATING FACTORS.

Defendant's first argument is not properly before us because defendant entered a guilty plea pursuant to a plea bargain without reserving the right to appeal any adverse determinations of pretrial motions, as provided by Rule 3:9-3(f).

Defendant's concurrent eight-year sentences are one year longer than the presumptive seven-year term of imprisonment for a second-degree offense. See N.J.S.A. 2C:44-1(f)(1)(c). In State v. Natale, 184 N.J. 458, 466 (2005), the Court held that "a sentence above the presumptive statutory term based solely on a judicial finding of aggravating factors, other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee." To remedy this constitutional violation, "a new sentencing hearing [must be held] based on the record at the prior sentencing." Id. at 495. "At the new hearing, the trial court must determine whether the absence of the presumptive term in the weighing process requires the imposition of a different sentence." Id. at 495-96. This holding applies to all cases that were on direct appeal when Natale was decided. Id. at 494. Because defendant was sentenced to a term in excess of the presumptive term, based partly on an aggravating factor other than a prior criminal conviction ("[t]he nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner," N.J.S.A. 2C:44-1a(1)), and his case was on direct appeal when Natale was decided, we conclude that defendant should be resentenced in conformity with Natale. This conclusion makes it unnecessary to address defendant's arguments relating to the excessiveness of his sentences.

 
Accordingly, defendant's convictions are affirmed. Defendant's sentence is vacated, and the case is remanded to the trial court for resentencing in conformity with Natale.

The legal argument set forth under this point heading has been withdrawn.

We also note that the record before this court that would not provide a basis for appellate review of the trial court's disqualification of defendant's original counsel, even if the issue had been reserved. Defendant's appendix does not contain the State's motion to disqualify his original trial counsel, any of the papers submitted in support of or in opposition to the motion or the court's opinion granting the motion.

(continued)

(continued)

4

A-4740-03T5

January 26, 2006