STATE OF NEW JERSEY v. JAMIL MATEEN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4662-05T24662-05T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMIL MATEEN,

Defendant-Appellant.

_________________________________________________________

 

Submitted April 17, 2007 - Decided April 25, 2007

Before Judges Coburn and Axelrad.

On appeal from the Superior Court of New Jersey,

Law Division, Monmouth County, No. 03-08-1573.

Jamil Mateen, appellant pro se.

Luis A. Valentin, Monmouth County Prosecutor,

attorney for respondent (Mark P. Stalford, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

On February 17, 2004, defendant, Jamil Mateen, pled guilty to first degree armed robbery, N.J.S.A. 2C:15-1, and to other charges that are not at issue on this appeal. The punishment imposed for the armed robbery included imprisonment for fourteen years with the period of parole ineligibility required by the No Early Release Act, N.J.S.A. 2C:43-7.2. He appealed, and while the appeal was pending filed a pro se motion in the trial court to correct his sentence on the ground that it was illegal. The judge properly dismissed the motion on the ground that he had no jurisdiction because of the pending appeal. R. 2:9-1(a). We affirmed defendant's conviction after considering the appeal on an excessive sentence calendar. The present appeal is from the order dismissing his motion to correct an illegal sentence.

After considering the record and briefs, we are satisfied that defendant's arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2). Nonetheless, we add these comments.

As noted, the trial judge properly refused to consider defendant's motion because the case was then pending in the Appellate Division. Although we could affirm on that basis, that would probably lead to further unnecessary proceedings in the trial court on the substantive question of whether the sentence was illegal. There is no factual dispute on the substantive issue, which is whether the factual basis given by defendant at the time of his plea supported the judge's determination that this was a first degree robbery. Defendant argues that the mere request for money is insufficient to support a first degree robbery charge. Of course that is true. But here defendant admitted that when he asked for the money he also brandished a plastic toy handgun. State ex rel. L.W., 333 N.J. Super. 492 (App. Div. 2000), on which defendant relies, is entirely distinguishable in that there the defendant never put the victim in fear of bodily harm. Id. at 497. Since the factual basis given by defendant at the time of his plea was sufficient, we again affirm the original judgment as well as the order from which defendant appealed.

Affirmed.

 

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A-4662-05T2

April 25, 2007