STATE OF NEW JERSEY v. ERNEST FRANCOIS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5739-03T45739-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ERNEST FRANCOIS,

Defendant-Appellant.

____________________________________

 

Submitted May 3, 2006 - Decided June 9, 2006

Before Judges Parker, Grall and Newman.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-10-03689.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alan I. Smith, designated counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Joan E. Love, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried by a jury, defendant Ernest Francois was found guilty of the lesser included offense of reckless manslaughter on count one, possession of a handgun on count two, and possession of a handgun for an unlawful purpose on count three of Essex County Indictment No. 02-10-3689. The trial judge sentenced defendant on count one to an eighteen-year extended term of imprisonment, eighty-five percent of which he had to serve pursuant to the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2(a), and to five years' imprisonment on count two, to run concurrently with the sentence on count one. The court merged count three into count one. Defendant appeals. Except to remand for resentencing, we affirm.

The criminal charges arose from a fight on the night of May 15, 2002, in East Orange between a group of Jamaicans (Kenneth Bingham, Marvin Bunting, Floyd McLean, David Jacobs and Dennis Plummer) and a group of Haitians (defendant, Augustin Luckson, Savens Desir, and Andre Israel). The fight began when Israel rode his bike among Bingham, Bunting, McLean and Jacobs, who were walking on Main Street, and hit Bunting's and Bingham's arms. After confronting one another at various locations, Bingham took up the challenge to fight Israel. At that point, Israel got into defendant's car and they drove off. Bingham and his friends headed towards the bus stop to meet Plummer.

Defendant and Israel drove to a spot where the Haitians usually hang out and met Luckson and Desir. Defendant told Luckson and Desir that Israel had been threatened by a couple of guys, one of whom was Bingham, and that they should help him fight. Luckson and Desir got into the car, and Luckson saw Israel's gun inside. The four of them then drove to Domino's Pizza, where the Jamaicans had gone after meeting Plummer at the bus stop.

Defendant drove past Domino's Pizza about four times and then parked his car nearby. As he and the others got out of the car, defendant asked for Israel's gun. Desir, who was holding the gun, gave it to Israel, and Israel put it on the floor of the driver's side seat.

The Haitians went inside Domino's Pizza and approached the Jamaicans, who were sitting at a table. According to Luckson, defendant asked the Jamaicans why "they jump[ed] Israel," and defendant "hooked" Plummer because Plummer laughed at defendant. Bingham testified that defendant told Bingham that he wanted to fight, and Bingham said that he would fight after he got his pizza. Bingham said the Haitians then walked outside, Luckson handed defendant a "barrel gun", and defendant "put it in his waist." They walked back inside, approached the Jamaicans, and defendant said to Bingham: "I don't even need this for you," as he lifted his shirt to expose the gun. Luckson testified that defendant did not have a gun while inside Domino's Pizza. In any event, Bingham and Luckson both testified that the two groups briefly exchanged punches in Domino's Pizza and that the Haitians left after Bingham opened a wound that Luckson had on his face.

When the Haitians left Domino's they went to defendant's car. Defendant started to drive off but then turned into a parking lot after seeing the Jamaicans leave Domino's Pizza. Defendant parked the car and grabbed Israel's gun. All four Haitians got out of the car and started walking towards the Jamaicans. Everybody began throwing bottles and rocks.

A car pulled over next to the Jamaicans. Bingham yelled, and so did his crew. Defendant shot the gun striking Bunting who was unarmed and carrying a pizza.

There were numerous witnesses to the shooting. Bingham, McLean, and Jacobs, who made out-of-court and in-court identifications of defendant, said that they saw defendant shoot the gun that killed Bunting. They had no trouble identifying defendant because nothing had blocked their view, and they had seen him before.

When the police arrived they apprehended Desir near the scene. At the police station he identified defendant as the shooter. On May 17, 2002, the police arrested Luckson on outstanding warrants, and he too identified defendant as the shooter. On May 17, 2002, defendant turned himself in to the police but denied firing the gun.

On appeal, defendant raises the following points for our consideration:

POINT I: REQUIRING AN INCARCERATED CO-DEFENDANT TO WEAR ORANGE PRISON GARB WHEN HE TESTIFIED AS A STATE'S WITNESS AGAINST THE DEFENDANT DEPRIVED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW)

POINT II: THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT'S MOTION FOR A CHARGE ON LOST EVIDENCE CONCERNING THE DOMINO'S PIZZA VIDEOTAPES.

POINT III: COMMENTS MADE BY THE PROSECUTOR IN SUMMATION WERE IMPROPER AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL (RAISED IN PART BELOW).

(A)

THE PROSECUTOR'S ASSERTION THAT THE PERSON WHO SHOT MR. BUNTING WAS "TALLER" THAN THE DECEASED WAS AN IMPROPER "NET OPINION" OF THE PROSECUTOR AND WAS NOT SUPPORTED BY EXPERT TESTIMONY.

(B)

THE PROSECUTOR IMPROPERLY REFERRED TO THE DEFENDANT AS "THIS CONVICT" (NOT RAISED BELOW).

(C)

THE PROSECUTOR IMPROPERLY ARGUED THAT THE DEFENDANT WAS "GUILTY BY ASSOCIATION" (NOT RAISED BELOW).

POINT IV: IMPOSITION OF AN EXTENDED TERM SENTENCE OF EIGHTEEN (18) YEARS WITH A 85% NERA PERIOD OF PAROLE INELIGIBILITY ON THE DEFENDANT'S CONVICTION ON COUNT ONE FOR RECKLESS MANSLAUGHTER WAS MANIFESTLY EXCESSIVE, CONSTITUTED AN ABUSE OF THE COURT'S DISCRETION, AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON AND STATE V. NATALE.

(A)

THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING THE DEFENDANT TO AN EXTENDED TERM AS A PERSISTENT OFFENDER.

(B)

IMPOSITION OF THE DISCRETIONARY EXTENDED TERM VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS TO TRIAL BY JURY AND DUE PROCESS OF LAW UNDER BLAKELY V. WASHINGTON AND STATE V. NATALE.

(C)

IMPOSITION OF THE BASE EXTENDED TERM OF EIGHTEEN (18) YEARS IS ILLEGAL UNDER STATE V. NATALE.

(D)

IMPOSITION OF THE NERA PERIOD OF PAROLE INELIGIBILITY ON THE EIGHTEEN (18) YEAR BASE EXTENDED TERM WAS ILLEGAL.

We address the arguments in the order just recited.

I.

Defendant contends that Luckson's testifying against him while wearing an orange prison jump suit denied him the right to a fair trial because it created the risk that the jury would find him guilty by association, and it had the capacity to inflame the jury against him. Defendant did not object to Luckson's attire at trial so the issue is raised as a matter of "plain error," or error that was clearly capable of producing an unjust result. R. 1:7-2; R. 2:10-2. We conclude that the plain error test has not been met.

In the recent decision of State v. Russell, ____ N.J. Super. ______ (App. Div. 2006), a State's witness testified dressed in prison garb and while restrained both by handcuffs and shackles. Objections were raised as to the witness' appearance in restraints and clothing identifying him as a prisoner. The trial judge did not hold a hearing to determine if the security was necessary. If it was deemed necessary, then a cautionary instruction was required to insure a fair trial. State v. Roberts, 86 N.J. Super. 159, 166-68 (App. Div. 1965); see also State v. Damon, 268 N.J. Super. 492, 499 (App. Div. 1996).

With regard to the witness's attire, this court in State v. Russell decided that the reasoning of State v. Artwell, 177 N.J. Super. 526, 239 (2003), that a defense witness not be required to appear in prison garb, applied equally to a State's witness since no vital State interest was promoted by the witness's appearance. State v. Russell, supra, slip op at 13. The combination of restraints and prison garb prejudiced Russell "since it provided visual reinforcement to other evidence of his guilt, and suggested to the jury that the State regarded the crime committed to have been of sufficient violence to justify the use of substantial and cumbersome restraints." State v. Russell, supra, slip op at 20-21.

While we reversed in Russell, reversal is not called for here. To begin with, Luckson was not restrained while testifying. To the extent appearance undermines witness credibility that would benefit a defendant when the witness testifies on behalf of the State. Luckson's attire did not suggest guilt by association any more than his testimony did. Indeed, his testimony was much more damaging to the defense than his appearance was. Luckson testified that while he did not see defendant fire the gun, he believed defendant was the shooter because defendant was the only person who had the gun just before the shooting, and Luckson was standing only a couple of feet away from defendant when the shot rang out. In light of that testimony, it is highly unlikely that Luckson's attire prejudiced the jury, and much less so to require reversal on a plain error basis.

II.

At a hearing, on defendant's motion for a lost-evidence jury charge, Detective Rolando Baugh testified that he and Detective Clark went to Domino's Pizza just after the shooting to investigate. Fredis, the assistant manager, told Baugh that Domino's kept a surveillance video system but that he did not have access to the room where the camera was located. Baugh asked Fredis to contact someone who did, and Fredis contacted the manager, Khan.

Baugh guarded the door to the room where the video machine was located while he waited for Khan to arrive. Khan arrived about an hour later. Baugh testified that Khan was "very furious" when he arrived because the camera had not been turned on.

Baugh viewed the video to confirm that it contained no evidence of the fight. For thirty minutes to an hour Baugh and Clark watched the video. Baugh agreed that the camera had not been turned on because the people in the video were not the same people who worked at the store that night, and the tape displayed a date other than May 15, 2002. Baugh gave the tape back to Khan and did not process it as evidence.

The trial court found Baugh credible and held that the tape did not constitute lost evidence because it did not contain any relevant information; it was a recording of a different night. The court declined to give a lost-evidence jury charge, but told defendant that he could cross-examine Baugh on the issue at trial.

On appeal, defendant contends that the court erred in so ruling because his right to discover the tapes did not depend on whether they were exculpatory and that Baugh's credibility was not a factor in determining the State's discovery obligations. Further, he argues, his ability to cross-examine Baugh could not cure the defect in the court's refusing to give a lost-evidence charge.

We reject defendant's argument because it presumes that the videotape was evidence. The record established otherwise. At the hearing the only evidence offered on the issue was Baugh's testimony. He said that the video was a recording of another night. Thus, the State's not preserving the tape did not amount to "losing evidence," because there was no evidence to be lost. The court properly refused to give a lost-evidence charge.

Defendant also asserts that the State's failure to preserve the videotape denied him due process. Whether lost evidence amounts to a due process violation, our courts consider: "(1) the bad faith or connivance by the government; (2) whether the evidence was sufficiently material to the defense; and (3) whether the defendant was prejudiced." State v. Dreher, 302 N.J. Super. 408, 483 (App. Div.), certif. denied, 152 N.J. 10 (1997), cert. denied, 524 U.S. 943, 118 S. Ct. 2353, 141 L. Ed. 2d 723 (1998). Defendant does not contend that the State acted in bad faith in not preserving the videotape, but rather that the tape could have elicited additional areas of cross-examination and opportunity to create reasonable doubt. Defendant maintains that he was prejudiced by the State's failure to preserve it.

We disagree. The tape was not a recording of that night; thus it was not material to the defense. The State's failure to preserve it did not prejudice defendant.

III.

Defendant contends that the prosecutor made three comments during summation that deprived him of a fair trial. First, the prosecutor urged the jury to find guilt by association because defendant was friends with Luckson. Second, he referred to defendant as "this convict" and third, he said that the shooter was taller than Bunting. No objections were made to the first two comments, and they must be reviewed under the plain error standard. R. 1:7-2; R. 2:10-2.

The first comment that defendant challenges as improper is the prosecutor's allegedly urging the jury to find defendant guilty because he was friends with Luckson. As the prosecutor put it:

Mr. Luckson is in jail now and you heard he has criminal convictions. He brought it out on the stand and he testified. When you consider his testimony, consider this was the person that this defendant is friends with. Luckson Augustin is this defendant's friend. Luckson Augustin is the one that this defendant drives to his apartment, and says, hey, jump in my car, I need you. Join me. And he recruited to go fight the Jamaicans on Main Street, the ones that were waiting for their pizza.

Defendant contends that that comment coupled with Luckson's testifying in prison garb shows that the comment urged guilt by association.

We disagree. In our view, the prosecutor was not implying guilt by association but was attempting to bolster Luckson's credibility. He was urging the jury to find that someone would not implicate his friend in a homicide unless the friend actually did it.

Additionally, the comment was made to counter defense counsel's argument in summation that Luckson was the shooter. In examining a prosecutor's closing argument, a court "must not only weigh the impact of the prosecutor's remarks, but must also take into account defense counsel's opening salvo." State v. Munoz, 340 N.J. Super. 204, 216 (App. Div.), certif. denied, State v. Panto, 169 N.J. 610 (2001) (quoting United States v. Young, 470 U.S. 1, 12, 105 S. Ct. 1038, 1045, 84 L. Ed. 2d 1, 11 (1985)). Here, defense counsel urged the jury to conclude that Luckson was the shooter. He said:

[W]hen you have all of the evidence there . . . ask yourself what makes more sense the story that the state has put forward or another story? Other stories? How about Luckson Augustin is the one that pulled the trigger that night? How about that story, does that make sense? I submit to you it does. He's got motive to do [it] right? He's got problems before with Mr. Bingham, you know, you [sic] talked about that. And he got into a fight that night with Kenneth Bingham. Right, Kenneth Bingham snuck him, punched him in the eye, and made him bleed not because Kenneth Bingham punched him hard enough [to] make him bleed. He was bleeding that night because he had stitches under his eye, and the reason he had the stitches because I think you [referring to Luckson] said, again, I don't remember the exact words ["]I had trouble before, you know.["] Luckson Augustin is that kind of guy. And he's got all the reason in the world to put the blame on someone else.

The prosecutor's highlighting that Luckson was a friend of defendant countered defense counsel's foregoing summation. The comment was proper.

The second comment that defendant challenges as improper is the prosecutor's calling him "this convict." The prosecutor concluded his summation with the following remarks:

Now the case is about to go to you. The standard of proof in this case is proof beyond a reasonable doubt. The standard of proof deals with reasonableness. There was nothing reasonable about the way this defendant conducted himself. Mr. Francois was out there coming back time after time in that red car saying, "I want to shoot the fair one." I submit to each and every one he shot the fair one, he shot the heart breaker, the man is dead. He killed an innocent boy, innocent man who did nothing to him. He was carrying a box of pizza down Main Street in the United States of America like anybody else and now he's gone. And I love to call Marvin Bunting to the stand so he could tell his story, and he can't speak because he's silenced by this defendant, but you know what, you can give him a voice with your verdict, and I ask you to find this convict, this defendant, Mr. Francois guilty on all counts.

Defendant argues that using the legal term "convict" in a "pejorative connotation" suggested that defendant had prior criminal convictions. State v. Rodriguez, 365 N.J. Super. 38, 51 (App. Div. 2003), certif. denied, 180 N.J. 150 (2004)). Additionally, the comment constituted derogatory name-calling, which our courts disfavor. State v. Pennington, 119 N.J. 547, 559 (1990), overruled on other grounds, 132 N.J. 377, 392 (1993).

The State acknowledges that the comment amounted to improper name-calling. However, the prosecutor immediately corrected himself by referring to defendant. In a word, the prosecutor misspoke. This isolated comment, which was not objected to, does not rise to a plain error level.

The third and final comment that defendant challenges as improper is the prosecutor's contention that the shooter was taller than Bunting. The prosecutor made that statement in relation to Janed Shaikh's testimony. Shaikh was the forensic pathologist who examined Bunting's body. He testified that the bullet entered Bunting's right armpit, traveled left and slightly downward, and stopped just below the skin of the left armpit. The prosecutor summarized the testimony and the inference to be drawn as follows:

So, we have the downward path of the bullet which is significant because Dr. Shaikh when he was doing this autopsy measured Marvin's dead body on that metal table and what were his findings? He weighed 165 pounds, not a big guy, and 65 and a half inches tall which translates to 5 feet 5 and a half inches tall. He's a short, young man. So, we got this bullet traveling downwards. I submit he was shot by someone taller.

Defense counsel objected that "[t]here was no testimony with regard to that from anyone." The trial judge noted the objection but did not sustain it. Nor should he have. The comment was properly based on the forensic evidence which permitted the drawing of an inference that the shooter was taller than the victim and not someone short like Luckson. There was no error, much less plain error.

IV.

Defendant challenges his sentence as excessive on four grounds. First, he asserts that his extended sentence on count one (reckless manslaughter) violates the Sixth Amendment to the United States Constitution. Second, he argues that the court abused its discretion in imposing an extended sentence. Third and fourth, he contends that if his extended sentence is lawful then the base term of eighteen years violates the Sixth Amendment, and the parole-ineligibility term is illegal.

The trial court found that defendant was eligible for an extended term because he was thirty-one years old and had three prior indictable convictions for crimes committed while he was an adult. N.J.S.A. 2C:44-3a. The court considered the aggravating and mitigating factors. It found no mitigating factors and aggravating factors six, prior criminal record and seriousness of the offense, and nine, the need to deter.

Based on the foregoing the court concluded that (1) the public needed to be protected from defendant, (2) the crime he committed was a serious crime of violence, and (3) defendant had not responded to non-custodial efforts. Those conclusions, ruled the court, justified granting the State's motion for an extended term on the reckless manslaughter conviction. Thus defendant was subject to a sentence range of ten to twenty years' imprisonment, instead of five to ten years' imprisonment (compare N.J.S.A. 2C:43-7(a)(3) (extended terms) with N.J.S.A. 2C:43-6(a)(2) (ordinary terms)).

Next, the court considered the State's request to impose a parole-ineligibility term pursuant to the NERA. The court found

that NERA mandated that the court impose an eighty-five-percent-parole-ineligibility term on defendant's sentence on count one. N.J.S.A. 2C:43-72.

The trial judge said that on count one it was imposing the presumptive term, which is fifteen years' imprisonment for an extended term, N.J.S.A. 2C:44-1(f)(1)(b), but then sentenced defendant to eighteen years' imprisonment.

Defendant first challenges the court's imposing an extended term on count one as violating the Sixth Amendment. He relies on Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 2537, 159 L. Ed. 2d 403, 413 (2004), in which the Supreme Court held that the Sixth Amendment precludes a court from imposing a sentence, based on judicial fact-finding, that exceeds the maximum sentence authorized by a jury verdict or an admission by the defendant. Defendant argues that in order to impose an extended term, the court had to find that he is a threat to the public (relying on State v. Pennington, 154 N.J. 344, 354 (1998)), in which the Court said: "The standard for determining whether to impose an extended term upon an eligible defendant is whether it is necessary for the protection of the public from future offenses by defendant through deterrence"). Defendant contends that judicial fact-finding renders the sentence illegal.

Extended terms for repeat offenders are lawful because they fall within the "prior conviction exception" enunciated in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000), in which the Court held that the Sixth Amendment is not violated when a court imposes an extended sentence because of a defendant's prior record.

In State v. Young, 379 N.J. Super. 498, 510 (App. Div. 2005), this court affirmed a ruling, which it had rendered in a number of cases following Apprendi and Blakely, that "the 'prior conviction' exception permits imposition of an extended term under the persistent offender statute, N.J.S.A. 2C:44-3a." Besides relying on precedent to so hold, we drew support from one of the three recent Supreme Court cases that interpreted Blakely, namely, State v. Franklin, 184 N.J. 516 (2005). In Franklin, the Court vacated an extended-term sentence imposed under the Graves Act, N.J.S.A. 2C:43-6(c) and (d), reasoning that the Act "removed from the jury's consideration a critical fact -- whether defendant was armed" and allowed the court to impose an extended sentence based on its finding that the defendant used a weapon in the commission of the crime for which he was convicted. 184 N.J. at 534. As we observed in Young:

However, the [Franklin] Court added "had the jury found that defendant used or possessed the gun while committing manslaughter, there is no question that the extended term imposed by the sentencing court would have complied with the Sixth Amendment." Id. [Franklin, supra, 184 N.J. at 535] (citing Apprendi, supra, 530 U.S. at 490, 120 S. Ct. at 2362-63, 147 L. Ed. 2d at 455). See also Id. at 538, n.8; Abdullah, 184 N.J. at 506-07, both citing Almendarez-Torres v. United States, supra, 523 U.S. [224] at 243, 118 S. Ct. [1219] at 1230, 140 L. Ed 2d [350] at 368 [(1998)]. This is because of the "prior conviction" exception on which the recidivism statute is premised and because "the factual prerequisites" fall "squarely within the range of facts traditionally found by judges at sentencing" and are "sufficiently interwoven with the facts" related to the prior convictions. [State v.] Dixon, supra, 346 N.J. Super. [126] at 140-41 [App. Div. 2001, certif. denied, 172 N.J. 181 (2002)].

[Young, supra, 379 N.J. Super. at 510-11.]

That language makes clear that imposing an extended sentence in light of a defendant's prior convictions is lawful.

The second challenge defendant makes to his sentence is that the court abused its discretion in deciding to impose an extended term. Defendant concedes that he was statutorily eligible for an extended term, as he met the requirements of N.J.S.A. 2C:44-3a. He argues that the court should not have imposed an extended term because (1) his prior convictions were not for crimes of violence and thus there was not a need to protect the public from him, (2) the court found only two aggravating factors (six and nine), both of which were tied to his prior record, and (3) the jury found that he did not act with the culpability of a first degree crime, as they convicted him of reckless manslaughter, and thus the court's imposing a first-degree sentence was an abrogation of the verdict.

In deciding to subject defendant to extended term sentencing, the trial judge had this to say:

I exercise my discretion to expose him to the extended term for the following reasons. One, for the protection of the public. Again, as I indicated before, the public needs to be protected and the community needs to be protected from young men, such as Mr. Francois, using guns in the street when there's no -- no reason to have a gun. Okay?

Two, the serious nature of the crime. We have a -- a young boy who died as a result of his [defendant's] hands.

Two, it was a crime -- three, it was a crime of violence.

Four, he has never responded in the past to non-custodial efforts. He's been given probation on numerous occasions and -- and never successfully completed probation from what it looks like. He's never -- so, in effect, and as Mr. Sukhdeo [the prosecutor] pointed out, about eight months earlier, he was put on probation. His attitude towards the criminal justice system in his past has been ["]just probation. []Let me go on with the next crime."

Defendant was on probation when he killed Bunting. His continuing criminal conduct escalated despite his probation opportunities. The trial judge properly exercised his discretion in sentencing defendant to an extended term.

The third challenge defendant presents is that if the court did not err in imposing an extended term on count one, it erred in setting his sentence at eighteen years' imprisonment because that sentence was greater than the presumptive term of fifteen years.

In so arguing, defendant relies on State v. Natale II, 184 N.J. 484 (2005), in which the Court held that in light of Blakely, any sentence above the presumptive term that was based on judicial fact-finding, besides a finding of a prior conviction, is unconstitutional because under our Criminal Code the presumptive term is the maximum sentence that a judge can impose based on a verdict. Defendant contends that his sentence is illegal because it is three years more than the presumptive term.

We note that the court's decision on the length of the sentence is ambiguous, as it said that it was imposing the presumptive term, but then sentenced defendant to an eighteen-year term. In any event, a resentencing is required because the eighteen-year term was not based solely on defendant's record. This sentence was not just grounded on aggravating factors six and nine, but was also based on the court's finding that (1) few crimes were more serious than reckless manslaughter, (2) defendant and his friends were "bullies" that night, and (3) a message had to be sent to them and the community that "[y]ou can't use weapons." Thus the sentence was illegal because aggravating factors six and nine were not based solely on defendant's criminal record. State v. Natale, supra, 184 N.J. at 484.

The final challenge that defendant makes to his sentence is that the court's imposing a parole-ineligibility term on the eighteen-year extended sentence was illegal. He relies on State v. Andino, 345 N.J. Super. 35, 39 (App. Div. 2001), in which this court held that for crimes committed before June 29, 2001, and for which a court imposed an extended-term sentence, the NERA parole-ineligibility period had to be based on the maximum term for an ordinary, not extended, term. On June 29, 2001, the Acting Governor signed a bill that amended the NERA to make clear that it applied to the actual sentence imposed, even if that sentence was an extended term. See N.J.S.A. 2C:43-7.2(b).

Defendant recognizes that the law is contrary to his argument but urges us to reach a different conclusion. Defendant's argument is without merit. The amendment to the NERA applies to extended terms. Defendant has not established that the amendment is unconstitutional.

The judgment of conviction is affirmed. We remand for resentencing on the extended term sentence on count one.

 

Parenthetically, we note that the trial judge was amenable to dressing Luckson in a suit if requested. The following colloquy took place before Luckson testified and the jury was brought out:

MR. SUKHDEO: Judge, I asked this witness be uncuffed for the testimony. If you look at recent case law, if it was a defense witness he [would] have to have a suit on.

THE COURT: You can have a suit.

MR. SUKHEDEO: I just want him uncuffed. He won't be able to stand up. He will be shown physical exhibits.

THE COURT: All right. Uncuff him.

MR. SUKHEDEO: Mr. Francois is not cuffed.

THE COURT: There's a reason for that.

MR. SUKHEDEO: I know. Fair is fair.

The court also found that defendant was subject to a mandatory minimum term pursuant to the Graves Act, N.J.S.A. 2C:43-6c, but defendant does not challenge that finding on appeal.

(continued)

(continued)

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A-5739-03T4

June 9, 2006