STATE OF NEW JERSEY v. KENNETH M. BERRY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2468-05T22468-05T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KENNETH M. BERRY,

Defendant-Appellant.

_____________________________________

 

Submitted May 22, 2006 - Decided June 9, 2006

Before Judges Miniman and Newman.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, #59-05.

Kenneth Berry, appellant, pro se.

Thomas F. Kelaher, Ocean County Prosecutor, attorney for respondent (Thomas Cannavo, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Kenneth M. Berry, pro se, appeals from a sentence of twelve-months probation, which he completed by the time the appeal was heard de novo in the Law Division. Previously, defendant pled guilty in the Point Pleasant Beach Municipal Court to two counts of simple assault, N.J.S.A. 2C:12-1a(1), and was sentenced to twelve months probation on each count which were run consecutively.

He moved for reconsideration before the municipal court. The motion for reconsideration of sentence that was filed with the municipal court sought an order terminating probation after one year. In support of reconsideration of sentencing, defendant pointed out that in August 2005, the parties reached a global settlement in matters of divorce, annulment, custody, and support in the New York courts. In consideration of the settlement of that proceeding, defendant certified that the victim, his ex-wife, agreed to support the motion for reconsideration of sentencing. Defendant sought to reduce sentencing to one year to permit him to return to work as a physician in Pennsylvania or New York in order to support his ex-wife and children.

The municipal court denied the application. Defendant then pursued an appeal to the Law Division from the order denying reconsideration.

The Law Division judge first found that the motion on sentencing was de novo just as an initial appeal from the plea or sentence would have been de novo. Defendant explained that the difference to him between two years of probation and one year of probation was that in the former, he would be unable to work and it would be very difficult for him to become re-employed as a hospital-based physician. When the State agreed that probation could permit defendant to travel to Pennsylvania or New York, defendant replied that he could never actually secure a position while on probation.

Judge Vincent Grasso then proceeded to resentence defendant. The court found that mitigating factor (7) applied, N.J.S.A. 2C:44-1b(7). Defendant had led a law-abiding life. The court also found that mitigating factor (8) applied N.J.S.A. 2C:44-1b(8), in that his conduct was the result of circumstances unlikely to recur. The court found mitigating factor (10), N.J.S.A. 2C:44-1b(10), that he was a person who would respond affirmatively to probation. The court found the only aggravating factor would be the need to deter defendant and others from his type of conduct, N.J.S.A. 2C:44-1a(9). Judge Grasso resentenced defendant to twelve months probation, which had been successfully completed at the time. As a result, defendant was released from any further supervision by probation. Defendant obtained all the relief that he sought in the Law Division.

On appeal, defendant raises issues totally unrelated to the exclusive basis he appealed on in the Law Division. Among other things, he argues that his plea in the municipal court was coerced, involuntary, and that he had a defense against the charge because he lacked the mens rea to commit an assault. In so arguing, he dredges up all of the proceedings that took place as a result of a separate domestic violence final restraining order hearing, in which the judge in that proceeding issued a final restraining order.

None of the issues defendant attempts to raise on this appeal were presented to or addressed by the municipal court. Even more significantly, none of these issues were presented to Judge Grasso in the Law Division. As pointed out, defendant successfully reduced his probation term to one year in the Law Division, which was the exclusive relief he sought on the de novo appeal. Since none of the issues were presented or even the subject of the appeal to the Law Division, they are precluded from consideration by this court. The issues do not go to the trial court's jurisdiction nor do they concern matters of great public interest. R. 2:10-5; Neider v. Royal Indemnity Ins. Co., 62 N.J. 229, 234 (1973); Chalef v. Ryerson, 277 N.J. Super. 22, 28-29 (App. Div. 1994).

The appeal is dismissed with prejudice.

 

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A-2468-05T2

June 9, 2006