STATE OF NEW JERSEY v. BARUCH LANNER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3385-04T33385-04T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BARUCH LANNER,

Defendant-Appellant.

________________________________

 

Argued November 16, 2005 - Decided January 11, 2006

Before Judges Wefing, Fuentes and Graves.

On appeal from Superior Court of New

Jersey, Law Division, Monmouth County,

No. 01-03-563.

Victoria B. Eiger argued the cause for

appellant (Dershowitz, Eiger & Adelson and

Barry I. Fredericks, attorneys; Nathan Z. Dershowitz and Mr. Fredericks, of counsel; Ms. Eiger, on

the brief).

Leslie-Ann Justus, Deputy Attorney General,

argued the cause for respondent (Peter C.

Harvey, Attorney General, attorney; Ms.

Justus, of counsel and on the brief).

PER CURIAM

Defendant has appealed from an amended judgment of conviction entered by the trial court when defendant was resentenced following our affirmance in part and reversal in part of convictions entered after a jury trial. After reviewing the record in light of the contentions advanced on appeal, we again affirm in part and reverse in part.

A jury convicted defendant of one count of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a(2)(b); one count of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b(1), and two counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. The jury also acquitted defendant of one count of aggravated sexual contact and one count of criminal sexual contact but convicted him of the disorderly persons offense of harassment by offensive touching as a lesser-included offense. The trial court sentenced defendant to aggregate, concurrent seven-year terms in prison for the criminal convictions and a concurrent thirty days for harassment.

Defendant appealed his convictions and sentence. In an unreported opinion, we reversed one of defendant's convictions for endangering the welfare of a child and affirmed the balance. State v. Lanner, No. A-664-02 (App. Div. February 10, 2005).

We remanded the matter to the trial court for resentencing, at which defendant contended that his conviction for the petty disorderly persons offense of harassment was barred by the statute of limitations. The trial court disagreed. The trial court also rejected defendant's argument that the overall quantum of his sentence should be adjusted downward in light of our reversal of one of his convictions for second-degree child endangerment. The trial court reimposed the sentence it had originally--an aggregate seven years.

Defendant has appealed from that resentencing. On appeal, he raises the following arguments.

POINT I THE STATUTE OF LIMITATIONS HAD RUN ON THE LESSER INCLUDED OFFENSE OF HARASSMENT, SO DEFENDANT'S CONVICTION ON THAT COUNT CANNOT STAND

POINT II THE TRIAL COURT'S FINDING OF AN AGGRAVATING FACTOR THAT CANCELLED OUT THREE MITIGATING FACTORS WAS UNSUPPORTED, ITS WEIGHING OF THE AGGRAVATING AND MITIGATING FACTORS WAS UNREASONABLE, AND THE DEFENDANT'S SEVEN YEAR SENTENCE IS EXCESSIVE, ESPECIALLY IN LIGHT OF THE APPELLATE DIVISION'S REVERSAL ON THE SECOND DEGREE ENDANGERMENT CONVICTION INVOLVING MC

POINT III DEFENDANT'S SENTENCE WAS IMPOSED UNDER A SENTENCING SCHEME THAT DOES NOT SURVIVE BLAKELY V. WASHINGTON, 124 S. Ct. 2531 (2004), AND UNITED STATES V. BOOKER, 543 U.S. ___, 125 S. Ct. 738 (2005)

Defendant's conviction for the petty disorderly persons offense of harassment was premised upon his conduct toward M.C., which occurred no later than May 18, 1996. The statute of limitations for petty disorderly persons offenses is one year. N.J.S.A. 2C:1-6(b)(2) directs that a prosecution for such an offense "must be commenced within one year after it is committed." Defendant was not indicted for his conduct in this matter, however, until 2001. Defendant contends, accordingly, that he could not be convicted in a prosecution commencing in 2001 of a petty disorderly persons offense that occurred no later than May 1996.

The State, on the other hand, stresses that the indictment was timely for it was returned within five years of the victims having attained the age of eighteen. N.J.S.A. 2C:1-6(b)(4). It points to N.J.S.A. 2C:1-6d. At the time of defendant's indictment, this statute provided in part:

Nothing contained in this section, however, shall be deemed to prohibit the downgrading of an indictable offense to a nonindictable offense at any time if the indictable offense was filed within the statute of limitations applicable to indictable offenses.

We reject the State's assertion that this statute would permit the prosecution of a lesser-included offense at any time, so long as the greater offense is filed within the requisite limitations period. Rather, we agree with defendant that the statute, by its use of the term "downgrade," is referring to a prosecutorial function, not submission to a jury for its consideration of a time-barred offense.

We concur with defendant that State v. Short, 131 N.J. 47 (1993), leads to the conclusion that his conviction for petty disorderly persons harassment must be set aside. Defendant in that case was indicted for murder, more than six years after the killing had occurred. Id. at 51. The trial court, in its charge to the jury, gave instructions on murder, passion-provocation manslaughter, aggravated manslaughter and reckless manslaughter. Ibid. It also instructed the jury that if it found defendant guilty of manslaughter, he would be acquitted, the statute of limitations having run on that offense. Ibid. The Supreme Court reversed defendant's conviction for murder, finding that by giving such an instruction,

the trial court all but invited the jury to disregard the manslaughter instruction . . . . In effect, the trial court told the jury that it had a choice between returning a conviction for murder or letting defendant go unpunished.

[Id. at 58.]

The result, under Short, is that a lesser-included offense that is time-barred may be submitted to the jury, but a finding of guilt will not result in a judgment of conviction because of the statutory bar. Defendant's conviction for the petty disorderly persons offense must be set aside.

We reject as without merit the balance of defendant's arguments, which are a challenge to his sentence. R. 2:11-3(e)(2). Defendant raised no issue about his sentence at the time of his original appeal. The trial court, in imposing sentence, both at the initial sentencing and on resentencing following defendant's appeal, made no findings which run afoul of the principles enunciated by the United States Supreme Court in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), or our Supreme Court in State v. Natale, 184 N.J. 458 (2005). It cited only one aggravating factor, the need for deterrence, N.J.S.A. 2C:44-1a(9), and did not impose a sentence above the mid-point of the sentencing range. Natale, supra, 184 N.J. at 488 (noting "[w]e suspect that many, if not most, judges will pick the middle of the sentencing range as a logical starting point for the balancing process").

 
Reversed in part, affirmed in part and remanded for entry of an amended judgment of conviction.

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A-3385-04T3

January 11, 2006