STATE OF NEW JERSEY v. HENRY CAMILO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2990-04T42990-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HENRY CAMILO,

Defendant-Appellant.

______________________________________________________

 

Submitted April 20, 2009 - Decided

Before Judges Carchman and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 97-06-0639.

Yvonne Smith Segars, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Keith E. Hoffman, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Henry Camilo appeals from a judgment of conviction and order of commitment entered July 3, 2003, imposing a five-year flat custodial term in prison for second-degree aggravated assault. We affirm.

On April 28, 1997, defendant attacked his drinking companion and friend, Ramon Maria, with a machete at Maria's residence in Paterson. As a result, a Passaic County grand jury returned Indictment No. 97-06-0639 charging defendant with second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(1) (count one); second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(2) (count two); third-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4d (count three); and second-degree burglary, contrary to N.J.S.A. 2C:18-2 (count four).

Pursuant to a negotiated plea agreement, defendant entered a plea of guilty to count one on August 19, 1997, and in exchange, the State agreed to recommend that defendant's maximum incarceration be seven years and to recommend the dismissal of the remaining counts in the indictment. Judge Joseph J. Riva accepted the plea and, although the executed plea form reflected a maximum exposure of seven years incarceration, Judge Riva informed defendant that he would impose a flat term of six years incarceration if, upon his review of the pre-sentence report, the report confirmed that defendant had no prior criminal record. See Rule 3:21-2 (directing that before the imposition of a sentence, court support staff shall make a pre-sentence investigation in accordance with N.J.S.A. 2C:44-6 and shall report to the court).

On September 26, 1997, the date set for sentencing, defendant failed to appear, and a bench warrant for his arrest was issued. Approximately one month later, defendant voluntarily surrendered and offered to assist the State in an ongoing investigation by the Passaic County Prosecutor's Office of an automobile insurance fraud ring, in which defendant admitted he was an active participant. The bench warrant was rescinded and defendant was allowed to remain free on bail to facilitate his cooperation with the State.

This was the first in a long series of postponements of defendant's sentencing on the aggravated assault conviction. Between August 19, 1997 and May 15, 2001, there were more than twenty continuances. Defendant now contends that he had an understanding with the State that his cooperation in the insurance fraud matter would result in no jail time on his conviction for aggravated assault; however, no formal agreement to that effect was executed by defendant and the prosecutor's office, and no such agreement was placed on the record in this case. Neither was any motion made for a modification of the plea agreement that had been entered before the court on August 19, 1997.

Nevertheless, defendant insists that he believed over the next several years that he would receive a non-custodial sentence, continued to assist the State as the key witness in connection with the fraud investigation which, according to defendant, led to approximately forty-five to fifty convictions. During such time period of about four years, the prosecutor's office went through several personnel changes, and other individuals involved - prosecutor, appointed defense attorney and the judge handling the case - changed as well. At some point, the newly involved defense attorney expressed concern that defendant's alleged understanding with the prosecutor's office of "no jail time" had grown tenuous due to personnel changes and the extended delay in sentencing. As a result of that concern, on May 15, 2001, the defense attorney filed a motion on defendant's behalf seeking to dismiss the indictment. As an alternative, defendant sought to compel the State to honor its bargain or to allow defendant to withdraw his guilty plea. Judge Miguel A. De La Carrera, new to the case, denied defendant's motion on March 31, 2003.

Finally, on June 30, 2003, about six years after defendant entered the guilty plea, Judge De La Carrera sentenced him to a five-year custodial term in State prison. That sentence was two years less than the sentence the State had initially agreed to recommend as part of the plea agreement, and was one year less than Judge Riva had indicated he would impose when he accepted the plea. In addition, Judge De La Carrera included in his order of commitment a recommendation that defendant be permitted to apply for the Intensive Supervision Program (ISP), pursuant to Rule 3:21-10(b) and (c). The judge also granted defendant's motion for bail pending appeal. On February 16, 2005, defendant filed his notice of appeal in this matter.

On appeal defendant raises two points of argument for our consideration:

POINT I: THE EXCESSIVE TIME DELAY OF ALMOST SIX YEARS BETWEEN MR. CAMILO'S PLEA AND HIS SENTENCE VIOLATED HIS RIGHTS TO A SPEEDY TRIAL AND TO DUE PROCESS. (U.S. CONST. AMENDS. VI AND XIV; N.J. CONST. (1947), ART. I, PAR. 10; R. 3:21-4.

POINT II: THE TRIAL COURT ABUSED ITS DISCRETION BY NOT SENTENCING MR. CAMILO TO A DOWNGRADED SENTENCE.

We find defendant's arguments unpersuasive and without sufficient merit to warrant a lengthy written opinion. R. 2:11-3(e)(2). We add only these brief comments.

Under both federal and state law, criminal defendants enjoy the right to a speedy trial. U.S. Const. Amend. 6; N.J. Const. (1947), Art. I, par. 10; Burkett v. Cunningham, 826 F.2d 1208, 1219 (3d Cir. 1987). "The Speedy Trial clause is applicable to state trials as part of the due process required by the Fourteenth Amendment." Ibid. (citing Klopfer v. North Carolina, 386 U.S. 213, 225, 87 S. Ct. 988, 18 L. Ed. 2d 1, 9 (1967)). Although the issue has not been directly addressed in the appellate courts of New Jersey, the United States Court of Appeals for the Third Circuit has held in Burkett, supra, that the rights protected under the Speedy Trial clause extend to sentencing:

We now make explicit what we have assumed in our previous cases, that the Speedy Trial clause of the Sixth Amendment applies from the time an accused is arrested or criminally charged, United States v. Marion, 404 U.S. 307, 320, 30 L. Ed. 2d 468, 92 S. Ct. 455 (1971), up through the sentencing phase of prosecution, see Campisi, 583 F.2d at 694 -- in other words, until one final, pre-appellate determination has been made as to whether and for how long the accused should be incarcerated.

[Burkett, supra, 826 F.2d 1208, 1220.]

Further, the court in Burkett held that inordinate and unexcused delays in post-trial or post-conviction proceedings may violate a convict's "constitutional rights." Id. at 1221.

The Supreme Court of the United States, while not explicitly so holding, has favorably entertained this proposition, stating: "[W]e will assume arguendo that sentence is part of the trial for purposes of the Sixth Amendment." Pollard v. United States, 352 U.S. 354, 361 (1957). On the other hand, the timing requirements of sentencing are not left to discretion in the federal courts. Ibid. "Rule 32(a) of the Federal Rules of Criminal Procedure requires the imposition of sentence 'without unreasonable delay.'" Ibid. Moreover, in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), the Court announced four factors which are to be weighed when analyzing whether a defendant's right to a speedy trial has been violated: "[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and whether the defendant was prejudiced as a result of the delay." Id. at 530.

Like the federal courts, the courts of our state are required by rule to avoid unreasonable delays in sentencing. Rule 3:21-4 of our rules governing criminal practice in the State of New Jersey concisely states the "[s]entence shall be imposed without unreasonable delay." Thus, without regard to any constitutional imperative, the objectives embodied in the Speedy Trial clause are an integral part of our jurisprudence. Consequently, it is not necessary for the disposition of this appeal that we decide the constitutional issue, and we decline to do so. See, e.g., Randolph Town Ctr. L.P. v. County of Morris, 186 N.J. 78, 80 (2006) (indicating that a constitutional issue should not be deviated "unless its resolution is imperative to the disposition of litigation.").

In our assessment of whether the delay is unreasonable, we give considerable weight to which party caused or benefited from the delay. State v. Phillips, 176 N.J. Super. 495, 502 (App. Div. 1980). In Phillips, the reviewing panel found the open-ended deferral of a defendant's sentence unacceptable; however, because the deferral of sentence benefited the defendant, we nonetheless affirmed.

In the present case, the record is clear that defendant received some form of benefit from the delay in sentencing. At a minimum, he remained at liberty for an extended period of time, even after he had pleaded guilty to a second-degree crime. As to the extensive adjournment history, the trial judge found that "the delays here were, as I indicated earlier, just as much to the defendant's benefit. He remained at liberty." Although defendant contends he did not receive the benefit of his bargain with the State, we note that the sentence he received in this case was more lenient than that recommended by the State or that promised by the judge at the time the plea was accepted. While we note that defendant contends he understood he would receive a non-custodial sentence for his assistance to the State, that was never made a part of the record in the case. We are not in a position to evaluate the benefit that defendant may have derived in matters confronting him as a result of his role in the automobile insurance fraud ring.

Under all the circumstances, we affirm the order imposing a five-year custodial term for defendant's assault conviction substantially for the reasons stated by the trial judge in his comprehensive oral decision on June 27, 2003. The judge's findings are firmly supported by sufficient credible evidence contained in the record, State v. Locurto, 157 N.J. 463, 472 (1999); State v. Johnson, 42 N.J. 146, 162 (1964), and his conclusions predicated on those findings are legally sound. We perceive no basis to disturb the sentencing court's exercise of discretion in imposing the minimum sentence within the range of five to ten years applicable to second-degree crimes, instead of imposing a sentence for a crime one degree lower. State v. Megargel, 143 N.J. 484, 505 (1996) (reiterating that "the reasons justifying a downgrade must be 'compelling,' and something in addition to and separate from, the mitigating factors that substantially outweigh the aggravating factors.").

Affirmed.

As we noted above, defendant appears to have admitted outside this record that he was actively involved in an automobile insurance fraud ring. According to the State's brief, defendant was permitted to plead guilty to one of fourteen indictments, for which he was sentenced to probation with up to 364 days in the Passaic County jail as a condition of probation.

Judge De La Carrera noted that defendant would likely be at liberty within months as a participant in this program.

(continued)

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A-2990-04T4

August 27, 2009