STATE OF NEW JERSEY v. RIKI ATKINSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1266-06T41266-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RIKI ATKINSON,

Defendant-Appellant.

________________________________________________________

 

Submitted December 12, 2007 - Decided

Before Judges Stern and A. A. Rodr guez.

On appeal from the Superior Court of New

Jersey, Law Division, Cape May County,

Indictment Nos. 05-07-403, 05-11-723 and

05-12-868.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Frank J. Pugliese, Assistant

Deputy Public Defender, of counsel and on the

brief).

Robert L. Taylor, Cape May County Prosecutor,

attorney for respondent (J. Vincent Molitor,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Following rejection of defendant's application for enrollment in the drug court program, N.J.S.A. 2C:35-14, defendant pled guilty to second degree possession with intent to distribute within 500 feet of public property, N.J.S.A. 2C:35-7.1, interference with custody, N.J.S.A. 2C:13-4, and distribution of cocaine, N.J.S.A. 2C:35-5a(1), embodied in three different indictments. Pursuant to a negotiated disposition, defendant received an aggregate sentence of eight years with four years to be served before parole eligibility, the sentence on the public housing violation with sentences concurrent thereto.

On this appeal defendant argues that "the State's objection to a sentence of special probation was a gross and patent abuse of its discretion," that "conviction of interference with custody must be reversed and an acquittal entered," and that the sentence was both excessive and inappropriately "greater than [the] presumptive," in violation of the Sixth Amendment.

We need not address the procedural aspects of the case, including consideration of the application before the disposition, as opposed to following the plea and determination of what the charges would be. In any event, defendant pled guilty to a CDS offense which carries a presumption of imprisonment, and therefore N.J.S.A. 2C:35-14 controls. Compare State v. Meyer, 192 N.J. 421 (2007) (permitting admission into drug court or special probation as a condition of probation embodied in N.J.S.A. 2C:45-1 as well as the limited eligibility applicable for drug offenders who must serve mandatory minimums as developed in N.J.S.A. 2C:35-14). As the plea was to a second degree crime with the presumption of imprisonment, and N.J.S.A. 2C:35-14 controls, we must find a patent and gross abuse of discretion to permit enrollment, and we can find none, particularly in light of defendant's prior record. see N.J.S.A. 2C:35-14c. See also State v. Hester, 357 N.J. Super. 428, 441 (App. Div. 2003), certif. denied, 177 N.J. 219 (2003).

The defendant attacks her plea to interference with custody. If she was successful on that contention, it would upset the entire negotiated plea which included that plea as part of the negotiated disposition. There is no indication in the record that defendant wants to do that, particularly in light of the shorter concurrent negotiated sentence she received thereon. Defendant could have moved to withdraw her plea in the Law Division. See State v. Johnson, 182 N.J. 232, 241-44 (2005); State v. Mitchell, 374 N.J. Super. 172, 175-76 (App. Div. 2005). See also State v. Lightner, 99 N.J. 313, 316-17 (1985) (inadequate factual basis to one count of negotiated plea).

We also sustain the negotiated sentence which was imposed after the opinion in State v. Natale, 184 N.J. 458 (2005), was decided.

Affirmed.

The prosecutor should not have appended a copy of the presentence report to his brief. See State v. DeGeorge, 113 N.J. Super. 542 (App. Div. 1971)

We do not preclude a petition for post-conviction relief without withdrawing the pleas to the other counts, based on an inadequate factual basis to the interference charge and maintenance of the remainder of the negotiated disposition with the same aggregate sentence. However, the position of the parties should be developed on the record.

(continued)

(continued)

4

A-1266-06T4

December 24, 2007