STATE OF NEW JERSEY v. BARRY S. SHERMAN

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BARRY S. SHERMAN,

a/k/a BARRY SHERMAN,

Defendant-Appellant.

____________________________________________

April 3, 2014

Submitted March 10, 2014 - Decided

Before Judges Harris and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 02-03-527.

Joseph E. Krakora, Public Defender, attorney for appellant (Diane Toscano, Assistant Deputy Public Defender, of counsel and on the brief).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Barry S. Sherman appeals from the final judgment of conviction entered on December 7, 2011, after his resentencing, which imposed Megan's Law registration and notification requirements that were not included in his initial sentencing. Defendant raises one argument:

point i

the imposition of megan's law registration and notification requirements as a condition of sherman's sentence should be vacated, because the imposition was ignored through two prior sentencing proceedings, was imposed eight years after his initial sentence, and was imposed after he completed his custodial sentence.

We have considered defendant's argument in light of the record before us and the applicable law and affirm.

I.

The factual background is set out in our prior opinion and we quote relevant portions to place the issue before us in context.

On November 8, 2001, defendant Barry Sherman abducted a six year-old female child from in front of her home in Spring Lake for the purpose of holding her for ransom, and kept the child in his mother's home in Neptune City for approximately twenty-two hours, until abandoning his plan and dropping her off in front of the Monmouth Mall in Eatontown. As instructed by defendant, the child approached the first adults she encountered, identified herself, the police were notified, and she was safely returned home. The only harm suffered by the child was emotional and psychological in nature in the form of a post-traumatic stress disorder.

Defendant was charged in Monmouth County Indictment Number 02-03-00527 with first-degree kidnapping, contrary to N.J.S.A. 2C:13-1a (count one); third-degree criminal restraint, contrary to N.J.S.A. 2C:13-2a (count two); two counts of second-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4a (counts three and four); and third-degree terroristic threats, contrary to N.J.S.A. 2C:12-3a (count five).

After entering conditional pleas of guilty to first-degree kidnapping and to one count of second-degree endangering the welfare of a child, defendant was sentenced to a fifteen-year term of imprisonment on the kidnapping conviction, with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a consecutive term of seven years imprisonment on the endangering conviction.

[State v. Sherman, 367 N.J. Super. 324, 329 (App. Div. 2004).]

Defendant appealed from his conviction on the first-degree kidnapping charge, and from the sentence imposed on his second-degree conviction for endangering. Ibid. We reversed defendant's first-degree kidnapping conviction and remanded for entry of a guilty plea to second-degree kidnapping in accordance with the agreement entered into between the parties. Id. at 331. We also vacated the sentence on the endangering conviction and remanded for resentencing on that and on the second-degree kidnapping conviction upon substitution and acceptance of the guilty plea to that conviction. Id. at 360. The Supreme Court denied defendant's petition for certification. 180 N.J. 356 (2004).

Pursuant to our remand, defendant pled guilty to the amended count of second-degree kidnapping. Defendant provided a factual basis for the plea, admitting he took the child without permission and held her for ransom before releasing her the following day. Defendant was sentenced to a nine-year term on the kidnapping charge, subject to eighty-five percent parole ineligibility and three years of parole supervision. On the endangering charge, defendant was sentenced to a consecutive seven-year term.

In 2011, with defendant approaching his release date, the New Jersey State Parole Board contacted the Monmouth County Prosecutor's Office (MCPO) to inquire whether defendant would be required to register as a sex offender pursuant to Megan's Law, N.J.S.A. 2C:7-2. As the judges who had accepted defendant's initial and remand pleas had retired, the MCPO wrote to Judge Ronald Lee Reisner advising him of the issue and requesting that defendant be produced in court and advised of his obligation to register as a sex offender. Judge Reisner responded that if the State wished to amend the judgment of conviction to include additional penalties, it would have to file a motion.

The State moved to correct defendant's illegal sentence on July 5, 2011. Defendant was released from custody the following month and immediately began to serve a three-year period of parole supervision. Following oral argument, Judge Reisner reserved decision and on November 2, 2011 entered an order accompanied by a written decision granting the State's motion. He rejected defendant's arguments that the State's motion was untimely, citing State v. Horton, 331 N.J. Super. 92 (App. Div. 2000). In Horton, the initial judgment of conviction omitted the statutorily mandated provision for community supervision for life. Id. at 95. We affirmed an amended judgment of conviction which included community supervision for life, as the State's motion to correct the sentence was filed prior to the completion of the defendant's probationary sentence. Id. at 102. We also noted that Horton's original sentence was illegal as N.J.S.A. 2C:43-6.4(a) mandated community supervision for life for his offense. Ibid.

Relying on Horton, Judge Reisner rejected defendant's claim that the amended judgment of conviction violated double jeopardy, noting that defendant's kidnapping sentence "omitted a provision that is mandated by the New Jersey Criminal Code." He also found that defendant should not have an expectation that his sentence would be final "without the mandatory registration provision."

On December 2, 2011, Judge Reisner resentenced defendant to the same custodial sentence previously imposed, but included the mandatory registration requirements of Megan's Law.

II.

Because the issues before us are entirely questions of law, our review of Judge Reisner's decision is de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Rule 3:21-10(b)(5) provides that a court may at any time correct "a sentence not authorized by law including the Code of Criminal Justice[.]" In State v. Schubert, 212 N.J. 295, 309 (2012), the Court has interpreted the "at any time" language to mean that an illegal sentence "'may be corrected at any time before it is completed.'" (quoting State v. Murray, 162 N.J. 240, 247 (2000)).

Defendant abandons the double jeopardy argument he made before Judge Reisner and concedes that, under Schubert, double jeopardy principles are inapplicable if the component of the amended sentence is remedial as opposed to punitive. See Schubert, supra, 212 N.J. at 305. Defendant now argues that "[c]hanging Sherman's sentence by adding another punishment to the sentence, many years after the sentence was imposed and after he had completed his prison term, [violates] the doctrine of fundamental fairness." Defendant notes that the State did not seek to add the Megan's Law requirements to his sentence until 2011, eight years after his initial sentence and one month before his release on parole. He argues that the State failed to "move quickly" to "assert illegality."

"New Jersey's doctrine of fundamental fairness 'serves to protect citizens generally against unjust and arbitrary governmental action, and specifically against governmental procedures that tend to operate arbitrarily. [It] serves . . . as an augmentation of existing constitutional protections or as an independent source of protection against state action.'" Doe v. Poritz, 142 N.J. 1, 108 (1995) (quoting State v. Ramseur, 106 N.J. 123, 377 (1987) (Handler, J., dissenting)).

"Fundamental fairness is a doctrine to be sparingly applied. It is appropriately applied in those rare cases where not to do so will subject the defendant to oppression, harassment, or egregious deprivation." State v. Yoskowitz, 116 N.J. 679, 712 (1989) (Garibaldi, J., concurring and dissenting). Defendant has not alleged, let alone offered proof of such deprivation.

Defendant does not dispute that his conviction for second-degree kidnapping involving a six-year-old child is a "sex offense" as defined by N.J.S.A. 2C:7-2(b), requiring registration pursuant to Megan's Law. Defendant has suffered no "oppression, harassment, or egregious deprivation" as a result of the delay in imposing the restrictions that should have been included in his initial sentence, and we are satisfied that the doctrine of fundamental fairness has no application here and provides no basis for the relief sought.