STATE OF NEW JERSEY v. ZIEGFELD RIVERA

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2867-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ZIEGFELD RIVERA,

Defendant-Appellant.

___________________________________

September 20, 2010

Submitted September 14, 2010 - Decided

Before Judges Graves and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 07-08-1236.

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

Paula T. Dow, Attorney General, attorney for respondent (Natalie A. Schmid Drummond, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Ziegfeld Rivera appeals the imposition of parole supervision for life, N.J.S.A. 2C:43-6.4, following his guilty plea to third-degree endangering the welfare of a minor, contrary to N.J.S.A. 2C:24-4a. We affirm.

For the purposes of this appeal, the facts and procedural history can be briefly stated. In March 2007, Rivera engaged in an online "chat" of a sexual nature with someone he believed to be a thirteen-year-old girl. He made arrangements for a sexual encounter in Mantoloking the following day. When he arrived and entered the residence, he was arrested.1

Rivera was subsequently indicted for second-degree attempted sexual assault (count one), contrary to N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(c)(4), and second-degree luring or enticing (count two), contrary to N.J.S.A. 2C:13-6. Rivera entered into a negotiated plea agreement pursuant to which he pled guilty to a downgraded charge of third-degree endangering on the first count. In return, the State agreed to recommend a sentence of probation, conditioned on not more than 364 days in jail, parole supervision for life, and application of Megan's Law.2

At the plea hearing on August 8, 2008, Rivera acknowledged that he understood that he would be subject to parole supervision for life for a minimum of fifteen years. See N.J.S.A. 2C:43-6.4(c) (permitting a petition for relief from parole supervision for life after fifteen years). He did not challenge the constitutionality of the application of that statute to him. At the sentencing hearing on November 21, 2008, defense counsel requested that the judge not impose any jail time, asking that Rivera be sentenced only to parole supervision for life. The judge acceded to that request, did not impose any jail time or probation, and dismissed the second-degree luring charge pursuant to the plea agreement. This appeal followed.

On appeal, Rivera raises the following issue:

POINT I: THE APPLICATION OF PAROLE SUPERVISION FOR LIFE TO THIS DEFENDANT CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT.

Despite the clear requirement of Rule 2:6-2(a)(1), Rivera's brief does not state that the issue was not raised in the trial court.

Parole supervision for life was, at Rivera's own request, the only sentence imposed,3other than the Megan's Law requirements and mandatory penalties. Consequently, Rivera challenges the constitutionality of the very disposition he requested, which could be characterized as invited error. SeeState v. Lykes, 192 N.J.519, 539 n.7 (2007).

Under the circumstances of this case, in which Rivera not only failed to challenge the constitutionality of the sentence in the trial court but also asked that the challenged sentence be imposed, we decline to consider the issue for the first time on appeal. SeeNieder v. Royal Indem. Ins. Co., 62 N.J.229, 234 (1973).

A

1 The arrest was filmed by NBC Television for its Dateline series called "To Catch A Predator."

2 N.J.S.A. 2C:7-1 to -23.

3 It is not entirely clear that parole supervision for life can constitute an exclusive sentence. See N.J.S.A. 2C:43-2; 2C:43-6.4(a). See also Doe v. Poritz, 142 N.J. 1, 76 (1995) (holding that Megan's Law is not punishment for Eighth Amendment purposes). However, the State did not file a cross-appeal, so we need not reach that issue.