STATE OF NEW JERSEY v. RICHARD P. ZUCKERMAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4128-10T2

A-2962-11T21

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICHARD P. ZUCKERMAN,

Defendant-Appellant.

__________________________

October 25, 2012

Submitted October 11, 2012 - Decided

Before Judges Grall and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10-11-01631.

Richard P. Zuckerman, appellant pro se.

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Pursuant to a plea agreement, defendant Richard Zuckerman pled guilty to harassment under N.J.S.A. 2C:33-4 as a petty disorderly persons offense (PDPO) in exchange for the State's agreement to recommend a term of non-custodial probation. Defendant reserved the right to argue for time served. The trial judge sentenced defendant to a one-year non-custodial probationary term with a 264-day term of incarceration in the county jail, with time served. The March 22, 2011 judgment of conviction (JOC) erroneously listed the degree of defendant's conviction as a disorderly persons offense (DPO).

On April 25, 2011, defendant filed an appeal, and raised the following contentions:

1. DOES THE TRIAL COURT HAVE THE AUTHORITY TO SENTENCE A PETTY DISORDERLY PERSONS OFFENDER TO A SPLIT SENTENCE OF INCARCERATION AND PROBATION UNDER [N.J.S.A. 2C:43-2b(2)]?

2. HAS TRIAL COURT JUDGE [] MISAPPLIED THE LAW BY HAVING LISTED N.J.S.A. 2C:33-4 HARASSMENT AS A "DP" (DISORDERLY PERSONS OFFENSE)?

3. HAS TRIAL COURT JUDGE [] MISAPPLIED N.J.S.A. 2C:43-8 BY HAVING SENTENCED DEFENDANT TO ". . . SERVE 264 DAYS IN THE MCACC-TIME SERVED"?

4. WAS THE SENTENCE UNDULY EXCESSIVE PUNISHMENT FOR A CONVICTION OF A PETTY DISORDERLY PERSONS OFFENSE OF N.J.S.A. 2C:33-4 HARASSMENT?

On August 12, 2011, the judge issued an amended JOC changing the degree of defendant's conviction to a PDPO, but imposing the same sentence. Defendant filed a motion to reconsider the sentence. In a January 4, 2012 order, the judge denied the motion, finding it was time-barred pursuant to Rule 3:21-10(a). Defendant filed a motion for reconsideration, contending his sentence is illegal. In a February 1, 2012 order, the judge declined to consider the motion pursuant to Rule 3:21-10(d) because defendant's appeal was pending.

Defendant filed a second appeal from the January 4, and February 1, 2012 orders, and raised the following contentions:

Point 1

Is the appeal moot, in light of the potential for Declaratory Judgment relief, important public issues are raised on this appeal, and/or the issues are likely to recur yet evade review? [Not raised below]

Point 2

Did the trial court abuse its discretion by having failed to invoke the [Rule 3:21-10(b)(5)] time limit exception in which to submit [a] motion to correct the sentence?

Point 3

Did the trial court abuse its discretion by having invoked [Rule 3:21-10(d)] to deny the [Rule 1:7-4(b)] motion for amendment?

Point 4

Did the trial court follow improper procedure, by having denied this pro se defendant a [Rule 3:21-10(c)] hearing with oral argument, by having failed to address defendant's allegations for [a] [Rule 3:21-10(b)(5)] time limit exception?

Point 5

Does the phrase "not in accordance with law . . ." within [Rule 3:21-10(b)(5)] merely mean an error of law?

Point 6

Did the trial court violate N.J.S.A. 2C:43-8 by having specifically imposed a term of incarceration of 264 days for a [p]etty [d]isorderly [p]ersons offense?

Point 7

Does a criminal defendant have a State Constitutional [d]ue [p]rocess right to be given notice when a trial court judge is contemplating imposing a custodial sentence above and beyond the statutory maximum?

Point 8

Does a trial court have the authority to impose a split sentence for a [p]etty [d]isorderly [p]ersons offense?

Point 9

Does the excessiveness of the sentence violate defendant's right to [d]ue [p]rocess of law under the 1947 New Jersey Constitution, Article 1, Paragraph 1? [Not raised below]

Point 10

Does the excessiveness of the sentence violate defendant's right to be free from cruel and unusual punishment under the 1947 New Jersey Constitution, Article 1, Paragraph 12? [Not raised below]

Point 11

Did pool Deputy Middlesex County Public Defender [] render defective assistance of counsel by having refused to file an appeal of the excessiveness of the sentence?

Point 12

Were the Public Defender's claims they do not have the money to pay for a defense mental health expert on defendant's future dangerousness for the sentencing hearing a satisfactory excuse?

All of the issues defendant raises in these separate appeals, including his claims of ineffective assistance of counsel, concern the accuracy of the JOC and the excessiveness and legality of the sentence of imprisonment imposed in conjunction with his probationary sentence. Accordingly, we address the appeals together.

Having considered the record in light of defendant's arguments, we agree that his sentence is illegal and must be corrected. In contrast, we have concluded that his remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

The sanctions authorized following conviction for an "offense" are set forth in N.J.S.A. 2C:43-2b. The term "offense" is defined to include a crime, a DPO and a PDPO. N.J.S.A. 2C:1-14j; see N.J.S.A. 2C:1-4a-b. N.J.S.A. 2C:43-2b provides in pertinent part:

Except as provided in subsection a. of this section and subject to the applicable provisions of the code, the court may suspend the imposition of sentence on a person who has been convicted of an offense, or may sentence him as follows:

. . . .

(2) Except as provided in subsection g. of this section, to be placed on probation and, in the case of a person convicted of a crime, to imprisonment for a term fixed by the court not exceeding 364 days to be served as a condition of probation, or in the case of a person convicted of a disorderly persons offense, to imprisonment for a term fixed by the court not exceeding 90 days to be served as a condition of probation; or

(3) To imprisonment for a term authorized by . . . [N.J.S.A.]2C:43-8[.]

[N.J.S.A. 2C:43-2b (emphasis added).]

Although subsection b(2) authorizes a sentence of probation plus imprisonment for crimes and DPOs, it does not authorize imposition of imprisonment in conjunction with probation for a PDPO. The Legislature's silence with respect to PDPOs must be understood to foreclose such combined sentences, which are commonly referred to as split sentences. State v. Crawford, 379 N.J. Super. 250, 259-60 (App. Div. 2005). Moreover, even when a sentence of imprisonment is imposed for a PDPO without probation, the maximum sentence authorized is thirty days. N.J.S.A. 2C:43-8. Accordingly, the sentence of one-year probation plus 264 days imprisonment that is set forth in defendant's JOC and amended JOC is illegal. An illegal sentence is subject to challenge and correction at any time. State v. Paladino, 203 N.J. Super. 537 (App. Div. 1985); R. 3:21-10(b).

The JOC must be corrected to eliminate the reference to a sentence of imprisonment. Although this split sentence, involving imprisonment equivalent to time-served, has no practical impact on defendant, as stated in the JOCs it is illegal. Undoubtedly, the judge's intention was to reflect the time defendant spent in jail prior to sentencing so that defendant would receive a credit in the event he was subject to resentencing following a violation of probation in accordance with N.J.S.A. 2C:45-3a(4) and N.J.S.A. 2C:43-8. In this circumstance, defendant's right to a credit for the days spent in jail prior to sentencing should be preserved by stating the jail credits to which he is entitled in the event of resentencing on a violation of probation.

We remand for correction of the JOC to eliminate the illegal term and indicate the number of jail credits defendant has. In all other respects, defendant's sentence is affirmed.

1 These appeals originally calendared back-to-back are consolidated for purposes of opinion only.