STATE OF NEW JERSEY v. THOMAS DELACRUZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0188-06T10188-06T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

THOMAS DELACRUZ,

Defendant-Appellant.

________________________________________________________________

 

Submitted May 9, 2007 - Decided May 22, 2007

Before Judges Parker and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 01-02-0182.

Thomas Delacruz, appellant pro se.

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Jason F. Statuto, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Thomas Delacruz appeals from an order entered on June 9, 2006 denying his motion to correct an illegal sentence.

On November 13, 2001, defendant pled guilty to first degree carjacking, N.J.S.A. 2C:15-2a(1) and/or (2); two counts of second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and third degree terroristic threats, N.J.S.A. 2C:12-3a. He was sentenced on February 8, 2002 to an aggregate term of eighteen years subject to 85% parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. A court-appointed interpreter was provided for defendant at his plea and sentencing.

Defendant appealed his sentence and we affirmed on March 3, 2004 after hearing argument on an excess sentence calendar. In 2006, defendant filed the motion to correct an illegal sentence, which is the subject of this appeal. In denying the motion, the trial judge stated in his letter opinion dated June 9, 2006, that defendant's

pleas were entered on November 13, 2001 and the plea agreement provided for the imposition of concurrent sentences with a maximum of [20] years imprisonment with 85% to be served before parole. Carjacking is punishable with imprisonment of ten to thirty years with twenty years being the presumptive or middle of the range sentence.

On February 8, 2002 you were sentenced to concurrent terms of imprisonment but the Court imposed a maximum sentence of [18] years (and not the [20] years as provided for in the plea agreement). Your sentence was subsequently affirmed by the Appellate Division.

Your sentence was not illegal and accordingly, it will not be changed.

In this appeal, defendant argues:

POINT ONE

THE DEFENDANT'S ILLEGAL/EXCESSIVE SENTENCE OF EIGHTEEN YEARS, SHOULD BE REDUCED TO A TERM OF FIFTEEN YEARS OR LESS BASED ON THE CIRCUMSTANCES AND MITIGATING FACTORS, INCLUDING THE CASES CITED BELOW BY THE UNITED STATES SUPREME COURT AND SUPREME COURT OF NEW JERSEY, IN VIOLATION OF BOTH THE STATE AND FEDERAL CONSTITUTIONS

Defendant now contends that "although the court sentenced two years below the agreed upon plea bargain, the court misused its discretion when it failed to sentence defendant to a lesser sentence than [18] years . . . . The sentence imposed does not qualify defendant for a drug treatment program until he has served fifteen years, three months and nineteen days, including the NERA provisions." Defendant maintains that he "needs a drug program as soon as possible. He further argues that the sentence is illegal under State v. Natale, 184 N.J. 458 (2005); State v. Abdullah, 184 N.J. 497 (2005); and State v. Franklin, 184 N.J. 516 (2005).

We have carefully considered the record in light of defendant's arguments and the applicable law. We are satisfied that defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons stated by Judge Randolph M. Subryan in his letter opinion dated June 9, 2006. Nevertheless, we add the following comments.

Defendant states in his brief that he is "Hispanic and does not speak nor understand English," which rendered him unable to appeal his sentence properly. We note, however, that court-appointed interpreters were provided for defendant at each of his court appearances and that the record indicates all of the documents relevant to his defense, plea and sentencing were translated into Spanish. There is no indication in the record that defendant's request for an interpreter or translation of documents was ever denied.

With respect to defendant's Natale argument, we note that he was sentenced on February 8, 2002, and we affirmed the sentence on March 3, 2004. Natale was not decided until 2005. Since his appeal was not pending at the time Natale was decided, it does not apply to his sentence.

Affirmed.

 

(continued)

(continued)

4

A-0188-06T1

May 22, 2007