STATE OF NEW JERSEY v. F.C.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4822-04T44822-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

F.C.,

Defendant-Appellant.

_________________________________

 

Submitted October 25, 2006 - Decided December 7, 2006

Before Judges Wefing and C.S. Fisher.

On appeal from Superior Court of New Jersey,

Law Division, Passaic County, No. 03-05-0433-I.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Abby P. Schwartz, Assistant

Deputy Public Defender, of counsel and on

the brief).

Stuart Rabner, Attorney General, attorney

for respondent (Russell J. Curley, Deputy

Attorney General, of counsel and on the brief).

PER CURIAM

Defendant entered a negotiated plea of guilty to two counts of aggravated sexual assault, N.J.S.A. 2C:14-2a(1) and N.J.S.A. 2C:14-2a(2)(a); and one count of sexual assault, N.J.S.A. 2C:14-2c(3)(c). The trial court sentenced defendant to twelve years in prison for the two first-degree crimes and seven years in prison for the second-degree crime, subject to the requirements of N.J.S.A. 2C:43-7.2, No Early Release Act ("NERA"). It directed these terms be served concurrently with each other but consecutive to a twenty-year sentence defendant was serving in federal custody. Defendant has appealed. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Defendant raises the following arguments on appeal:

POINT I DEFENDANT'S PROSECUTION IN NEW JERSEY FOR AGGRAVATED AND SEXUAL ASSAULT WAS BARRED BY HIS PREVIOUS CONVICTION IN FEDERAL COURT FOR THE SAME CONDUCT.

POINT II DEFENDANT'S SENTENCE IS EXCESSIVE.

POINT III DEFENDANT'S SENTENCE IS IN VIOLATION OF BLAKELY V. WASHINGTON AND STATE V. NATALE.

In December 2002 a one-count federal indictment was returned against defendant in Puerto Rico, charging him with violating 18 U.S.C. 2251(a), for producing in Puerto Rico a pornographic video tape involving children and transporting it in interstate commerce. The indictment specified the conduct charged occurred in the summer of 1998 in Puerto Rico. Defendant pled guilty in May 2003, and United States District Judge Carmen Consuelo Cerezo sentenced defendant to twenty years in prison.

In May 2003 a Passaic County grand jury returned an eight-count indictment against defendant, charging him with sexual offenses against his daughter and his nephew; the indictment alleged conduct in Prospect Park between June and September 2002. It is that indictment, and defendant's resultant guilty plea and sentence, that is before us on appeal.

Defendant's claim that his prosecution in New Jersey is precluded by his earlier prosecution in Puerto Rico is governed by N.J.S.A. 2C:1-11. We reject defendant's argument that his prosecution here is barred under principles of double jeopardy substantially for the reasons expressed by the trial court when it denied defendant's motion seeking similar relief.

Defendant's final two arguments revolve around the fact that defendant's state sentence is to run consecutive to his federal sentence. Defendant contends that by doing so, the trial court violated the principles enunciated in State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), and State v. Natale, 184 N.J. 458 (2005). Although defendant frames his argument in terms of the trial court having imposed consecutive sentences, in fact, the trial court imposed concurrent sentences for the offenses to which the defendant pled guilty before it. It directed, however, that those concurrent sentences be served once defendant completed serving his federal sentence.

We see no violation of either Yarbough or Natale. Were the trial court to have ordered that defendant's state sentences be served concurrently with his federal sentence, it would have disregarded the discrete, separate harms defendant caused his daughter and his nephew. We do not consider that defendant's course of conduct spanning four years and two jurisdictions can fairly be considered, as defendant phrases it, "one aberrant act of criminality." To accept defendant's argument would, in effect, be to award him "free crimes" in violation of Yarbough's clear statement to the contrary. Yarbough, supra, 100 N.J. at 643.

Nor, in our judgment, does defendant's sentence run afoul of either Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), or Natale. Our Supreme Court held in State v. Abdullah, 184 N.J. 497 (2005), that the decision to impose a consecutive sentence does not trigger the same Sixth Amendment considerations that underlay Blakely and Natale. Abdullah, supra, 184 N.J. at 514; State v. Drury, 382 N.J. Super. 469, 488 (App. Div.), certif. granted, 186 N.J. 603 (2006). The fundamental question is the overall fairness of the ultimate sentence. Here, the trial court took cognizance of the fact that defendant's state court sentence was to be served consecutive to his federal sentence when it imposed sentences for the two first-degree crimes at the lower end of the sentencing range.

Defendant's convictions and sentence are affirmed.

 

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5

A-4822-04T4

RECORD IMPOUNDED

December 7, 2006