STATE OF NEW JERSEY v. ANDREW R. MAJKUT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3836-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANDREW R. MAJKUT,

Defendant-Appellant.

_________________________________

May 25, 2011

Submitted May 16, 2011 Decided

Before Judges Reisner and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 98-08-1153.

Fusco & Macaluso, L.L.C., attorneys for appellant (Robert J. Cascone, on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Andrew R. Majkut appeals the trial court's denial of his application to have his sentence reconsidered. We affirm.

The record indicates that defendant and a co-defendant, Neftali Soriano, broke into the home of a sixty-seven-year-old female relative of defendant, assaulted her, threatened her with a knife, demanded money, tied her up, and ransacked her home. The victim was struck several times with the knife, and her assailants threatened to kill her.

Based upon the State's proofs, defendant was convicted in a 2001 jury trial of first-degree armed robbery, second-degree burglary, third-degree aggravated assault, third-degree terroristic threats, fourth-degree unlawful possession of a weapon, third-degree possession of a weapon for an unlawful purpose, and third-degree criminal restraint. After various mergers, the trial judge imposed a sixteen-year prison term upon defendant for the armed robbery, subject to an 85% parole disqualifier under the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, plus a consecutive eight-year term for the burglary, and a concurrent four-year term for the criminal restraint and terroristic threats.

On defendant's initial appeal, we sustained his conviction but remanded for reconsideration of the consecutive aspect of his sentence. State v. Majkut, No. A-5841-01 (App. Div. June 3, 2002). On remand in 2003, the trial judge modified the sentence to make defendant's eight-year burglary term concurrent with, rather than consecutive to, his sentence for the robbery. As a result of that modification, defendant is now serving an aggregate custodial term of sixteen years. Meanwhile co-defendant Soriano, the other participant in the attack, is serving an aggregate custodial sentence of fifteen years. The sentences of both defendant and Soriano are subject to the parole ineligibility periods under NERA.

Defendant moved for further reconsideration of his sentence pursuant to Rule 3:21-10(b). The motion was entertained by Judge Lorraine Pullen1, who denied the application on March 12, 2010.

On his present appeal, defendant argues that the parole ineligibility period should be construed to permit him to be admitted into a custodial drug treatment facility under Rule 3:21-10(b)(1), in lieu of state prison. He also argues that his sentence should be reduced by one year to eliminate the alleged disparity with the co-defendant.

We reject these contentions, substantially for the reasons expressed in Judge Pullen's letter opinion dated March 12, 2010. As Judge Pullen correctly noted, the parole ineligibility period under NERA is not subject to change. As a matter of law, defendant is simply not permitted to enter a drug rehabilitation program in lieu of incarceration during the mandatory parole ineligibility period. See State v. Brown, 384 N.J. Super. 191, 196 (App. Div. 2006); State v. Le, 354 N.J. Super. 91, 95 (App. Div. 2002).

Moreover, we agree with Judge Pullen that there is no need to correct any alleged disparity between defendant's sentence and the sentence of the co-defendant, Soriano. Defendant preyed upon the vulnerability of his own elderly relative, and that alone is sufficient to distinguish his culpability from that of Soriano. The one-year difference in their custodial terms is manifestly not an "undue disparity" that requires appellate intervention. Cf. State v. Lee, 235 N.J. Super. 410, 413 (App. Div. 1989).

Affirmed.

1 Judge Pullen succeeded the judge who had tried this case and who had imposed both the original sentence in 2001 and the revised sentence in 2003.