STATE OF NEW JERSEY v. LUIS CARABALLO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5446-07T45446-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LUIS CARABALLO,

Defendant-Appellant.

__________________________

 

Submitted August 5, 2009 - Decided

Before Judges Rodr guez and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 94-09-3103.

Yvonne Smith Segars, Public Defender, attorney for appellant (Mark S. Carter, Designated Counsel, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Luis Caraballo appeals from the March 28, 2008 order of the Law Division denying his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.

The factual background may be summarized as follows. On February 18, 2000, defendant was indicted in Essex County on three counts of first-degree robbery, N.J.S.A. 2C:15-1; fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5(d); and third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4(d). On June 8, 2001, defendant entered into a negotiated plea agreement whereby he pled guilty to one count of first-degree robbery and the fourth-degree charge of unlawful possession of a knife. The agreement provided that defendant would be sentenced on the robbery count as a second-degree offense with a maximum exposure of ten years and a recommended maximum of seven years; defendant's sentence was subject to an eighty-five percent parole ineligibility period under the No Early Release Act, N.J.S.A. 2C:43-7.2(c) (NERA), due to his prior conviction for distribution of a controlled dangerous substance within 1000 feet of school property, N.J.S.A. 2C:35-7.

On September 4, 2002, defendant was sentenced to a term of five years with a NERA parole ineligibility period on the robbery count and a concurrent term of twelve months on the weapons count; these terms were also made concurrent to sentences defendant was serving from Hudson County. Defendant was ordered to serve a five-year term of parole supervision upon release from custody. He was awarded 110 days credit for jail time and 417 days in gap time credit pursuant to N.J.S.A. 2C:44-5(b)(2).

On or about October 1, 2007, defendant filed a PCR petition arguing that (1) his parole supervision period should be three years and (2) his gap time credit should come off "the back end of his sentence[,]" thereby moving his release date from May 2011 to March 2008. Counsel was assigned and oral argument was held on March 24, 2008; defendant was present.

On March 28, 2008, Judge Patricia K. Costello issued a written decision denying defendant's PCR petition in its entirety. Regarding the claim that his parole supervision period should be three years instead of five, the judge noted that NERA requires a court to impose a five-year parole supervision period "if the defendant is being sentenced for a crime of the first degree . . . ." N.J.S.A. 2C:43-7.2(c). Only "if the defendant is being sentenced for a crime of the second degree[,]" is a three-year parole supervision term imposed. Citing State v. Cheung, 328 N.J. Super. 368, 371 (App. Div. 2000), the judge rejected defendant's argument that "because his plea to a first-degree crime include[d] an agreement that he was to be sentenced as a second-degree offender, then his period of parole ineligibility should be three years and not five."

Regarding defendant's gap time credit argument, Judge Costello noted that a mandatory parole ineligibility period imposed under NERA cannot be reduced by applying gap time credits, citing Meyer v. N.J. State Parole Bd., 345 N.J. Super. 424, 430 (App. Div. 2001).

On appeal, defendant raises the following issue for our consideration:

DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED BECAUSE HE IS ENTITLED TO THREE YEARS OF PAROLE SUPERVISION UNDER THE NO EARLY RELEASE ACT AND IS ALSO ENTITLED TO 417 [DAYS OF] JAIL GAP TIME CREDIT

Having reviewed this argument in light of the record and the controlling legal principles, we conclude that it is without merit. We affirm substantially for the reasons set forth by Judge Costello in her written decision of March 28, 2008. We add only the following brief comments.

In State v. Cheung, supra, 328 N.J. Super. at 371, we addressed precisely the same issue defendant raises here. The defendant in that case pled guilty to three charges including one count of first-degree robbery; pursuant to his plea agreement, the defendant was sentenced on the robbery charge to a second-degree term of eight years, subject to NERA. Id. at 369. We held that "the judgment should reflect the five-year term of parole supervision mandated by NERA . . . . [A]lthough the matter was downgraded for sentencing under N.J.S.A. 2C:44-1f(2), defendant was 'sentenced for a crime of the first degree,' N.J.S.A. 2C:43-7.2(c), thereby requiring a five-, not a three-, year period of supervision." Id. at 371.

The same result pertains here. At his plea hearing, defendant gave a factual basis for a first-degree robbery offense, admitting that along with other people, one of whom was armed with a knife, he entered a store and "t[ook] different objects from the store . . . ." Defendant acknowledged that the knife was used "in order to facilitate" the "taking" of those objects.

Having admitted to a first-degree offense as set forth in his indictment, defendant faced sentencing "for a crime of the first degree" under NERA. N.J.S.A. 2C:43-7.2(c). As we noted in Cheung, supra, 371 N.J. Super. at 371, the fact that the sentence on that first-degree offense was downgraded to one within the second-degree range has no bearing upon the parole supervision period imposed.

We turn next to defendant's claim that his gap time credits should reduce his parole ineligibility period. The Supreme Court expressly rejected this argument in Booker v. N.J. State Parole Bd., 136 N.J. 257, 263 (1994). The Court was "satisfied that the Legislature did not contemplate that the intended effect of [N.J.S.A. 2C:44-]5(b)(2) would be to reduce the authority of courts to impose a . . . parole bar . . . ." Ibid. We specifically applied that principle to sentences imposed under NERA in Meyer v. N.J. State Parole Bd., supra, 345 N.J. Super. at 430, wherein we noted:

[A] judicially imposed period of parole ineligibility . . . is not reduced by gap time. In our view, the Legislature has spoken in clear and unambiguous terms that a person convicted of a NERA offense must serve eighty-five percent of the sentence imposed before becoming eligible for release.

"To adopt [defendant]'s argument would be inconsistent with the clear legislative intent." Ibid.

Affirmed.

 

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A-5446-07T4

August 21, 2009