STATE OF NEW JERSEY v. LUIS GONZALEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0557-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LUIS GONZALEZ,

Defendant-Appellant.

___________________________________________

October 13, 2010

Argued September 21, 2010 - Decided

Before Judges Parrillo and King.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-01-0184.

Ruth Bove Carlucci, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney).

Jack J. Lipari, Assistant Prosecutor, argued the cause for respondent (Theodore F.L. Housel, Atlantic County Prosecutor, attorney).

PER CURIAM

This is an appeal consequent upon our earlier decision on sentencing filed on May 6, 2009. After affirming defendant's conviction for carjacking, we then concluded that the sentence imposed was improper and remanded for resentencing. The facts comprising the crime are set forth in our earlier opinion, A-5382-06T4.

Defendant had been charged with a single count of the first degree crime of carjacking, N.J.S.A. 2C:15-2a(2). The State's motion for an extended term had been granted. At the first sentencing in 2009 defendant received a forty-five year prison term with a period of parole ineligibility of thirty-eight years and three months, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.1 (NERA). We ruled that defendant should be resentenced. We did not retain jurisdiction.

In our reversal after the first sentencing in 2009, we stated:

Defendant was sentenced to a forty-five-year prison term, subject to an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2d(10). The ordinary sentencing range for first-degree carjacking is between ten and thirty years. N.J.S.A. 2C:15-2b. Finding defendant extended term eligible, the judge described defendant's "exposure" as "30 to life."

In sentencing defendant to a forty-five-year term, the judge found no mitigating factors and three aggravating factors: the risk of committing another crime, N.J.S.A. 2C:44-1a(3); defendant's prior record and the seriousness of the offense, N.J.S.A. 2C:44-1a(6); and a need to deter, N.J.S.A. 2C:44-1a(9). The judge placed the greatest emphasis on aggravating factors three and six, noting that defendant was "constantly committing crimes against people, . . . people's property rights, burglary . . . and now carjacking." He concluded that defendant "seems to be getting worse because he's escalated to a first-degree crime." In addition, the judge viewed deterrence under factor nine "to be of huge weight" in that he thought "common sense would dictate that the higher you go up in degree, the more the need to deter because now you're getting into the more serious crimes, the more violent crimes." In this regard, the judge emphasized defendant's five prior indictable convictions, three municipal court convictions, a pretrial intervention termination in 1998, as well as defendant's admitted use of marijuana and heroin, and violations of probation and parole.

Although the judge recognized the applicability of State v. Pierce, 188 N.J. 155 (2006), he incorrectly viewed the range that applied to defendant's extended-term exposure as being thirty years to life, whereas Pierce instructs that the extended-term sentencing range is expanded from the minimal ordinary sentence to the maximum extended-term sentence. Id. at 169-70. In applying this principle, the judge should have utilized a range of exposure of ten years to life, not thirty years to life. This misapprehension requires defendant be resentenced.

In addition, the judge was mistaken in attributing "huge weight" to aggravating factor nine. "Once the decision to impose an extended term has been made, the court should then return its focus primarily to the offense." State v. Dunbar, 108 N.J. 80, 91 (1987). Thus, "the conduct that is the occasion for the sentence controls the severity of the sentence." Ibid.

In this regard, on our present remand the judge should consider State v. Zadoyan, 290 N.J. Super. 280, 291 (App. Div. 1996), where we held that a sentence for carjacking should be influenced by the type of carjacking for which the defendant was convicted. We held: the most serious of the four types of carjacking is that which involves the infliction of bodily injury or the use of force, N.J.S.A. 2C:15-2a(1); that carjacking, which includes the threat of bodily injury, N.J.S.A. 2C:15-2a(2), and carjacking which occurs during the commission or threat to commit a first- or second-degree crime, N.J.S.A. 2C:15-2a(3), are "of intermediate concern"; and that carjacking, which consists of operating a vehicle with the lawful occupant remaining in it, N.J.S.A. 2C:15-2a(4), is "the least serious carjacking." Id. at 291.

Although Zadoyan developed this approach because the Legislature did not set a presumptive term for carjacking -- and now presumptive terms are no longer utilized in sentencing, State v. Natale, 184 N.J. 458 (2005) -- we nevertheless conclude that Zadoyan continues to provide a helpful guide in ascertaining the seriousness of the particular type of carjacking for sentencing purposes.

Here, defendant was convicted of a carjacking that we refereed to in Zadoyan as one of "intermediate concern." 290 N.J. Super. at 291. We would further observe what is obvious from the record -- that although the jury found defendant to have threatened the occupant with immediate bodily injury, or purposely or knowingly put the occupant in fear of immediate bodily injury -- that defendant was unarmed and no one was injured.

At the second sentencing the judge on June 12, 2009 imposed a forty-two-and-one-half-years prison term with a NERA term of 85% or 36.125 years. The strong need to protect the public through the sentencing process is readily inferable from the judge's remarks at resentencing on June 12, 2009. See State v. Pierce, 188N.J. at 169-170. Applying the controlling "abuse of discretion" standard, ibid., we cannot find on this record that the new, though severe, sentence of forty-two-and-one-half-years with a 36.125 NERA component, was a mistaken exercise of discretion requiring reversal.

Affirmed.