STATE OF NEW JERSEY v. KALIEF BETHEA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KALIEF BETHEA,

Defendant-Appellant.

_________________________________________________

November 7, 2013

Submitted October 29, 2013 Decided

Before Judges Fisher and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 08-10-0885.

Joseph E. Krakora, Public Defender, attorney for appellant (John A. Albright, Designated Counsel, on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Jennifer M. Eugene, Assistant Prosecutor, of counsel and on the brief).

Defendant filed a supplemental pro se brief.

PER CURIAM

On April 9, 2008, defendant Kalief Bethea (defendant) and two others defendants Chadrick Mighty and Davon Leonard entered a Trenton residence with the intent to commit a robbery; defendant Leonard was armed. A fourth defendant, Michael Wimbush, arranged for the residence's door to be unlocked. On October 14, 2008, defendant was indicted and charged with, among other things, first-degree robbery, N.J.S.A. 2C:15-1.1

On January 10, 2011, defendant moved to dismiss the indictment, arguing a violation of the Interstate Agreement on Detainers (IAD), N.J.S.A. 2A:159A-1 to -15, and due process principles. The motion was denied. Defendant thereafter entered a guilty plea to first-degree armed robbery, and the judge sentenced him to an eight-year prison term with an eighty-five percent period of parole disqualification pursuant to the No Early Release Act.

Defendant appeals, arguing:

I. THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT (Partially Raised Below).

A. The Indictment Should Have Been Dismissed On Speedy Trial Grounds.

B. The Court's Failure To Resolve The Factual Issue Of When The Detainer Was Actually Lodged In Pennsylvania Potentially Leaves The Defendant With A Right Under The IAD, N.J.S.A. 2A:159A-3(c), Without A Remedy.

II. THE EIGHT-YEAR PRISON SENTENCE IMPOSED ON DEFENDANT WAS EXCESSIVELY DISPARATE FROM THE SEVEN-YEAR TERM IMPOSED ON THE SIMILARLY SITUATED CO-DEFENDANT, AND THE COURT IMPROPERLY USED DEFENDANT'S NEGOTIATED JAIL CREDIT AS AN AGGRAVATING FACTOR IN DETERMINING THE LENGTH OF THE SENTENCE.

These arguments are amplified by defendant's pro se supplemental brief. We find no merit in any of defendant's arguments and affirm.

In denying the motion to dismiss the indictment, Judge Edward M. Neafsey outlined the relevant circumstances. The judge recognized that, on May 7, 2008, a warrant complaint was signed by a police officer, and a police report a few days later recognized that defendant was in custody in Pennsylvania. The following month, a Pennsylvania judge sentenced defendant to a prison term between one and two years in length. On September 16, 2008, the prosecutor's office received a letter from defendant stating he was serving a sentence in Houtsdale State Prison in Pennsylvania; that same day, a New Jersey law enforcement official telecopied the New Jersey warrant complaint to the Pennsylvania prison. The month after that, defendant and the others were indicted in connection with the Trenton robbery referred to at the outset.

Defendant wrote letters in September and October 2009 to the Mercer County Prothonotary, complaining that the detainer was hindering his release from the Pennsylvania prison. As Judge Neafsey observed, however, defendant's letters did not request final disposition of his New Jersey charges, a circumstance fatal to his argument that he was entitled to dismissal pursuant to the IAD. The judge's ruling was governed by N.J.S.A. 2A:159A-3(a), which states, in pertinent part that whenever an individual is imprisoned in one state while an untried indictment is pending in another:

on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within 180 days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint . . . .

[Emphasis added.]

Despite the long passage of time since the indictment, there is no evidence that defendant ever requested final disposition of the New Jersey charges until he moved for dismissal. We thus affirm the denial of the motion to dismiss substantially for the reasons set forth by Judge Neafsey in his thorough and well-reasoned oral decision.

To the extent defendant has presented additional arguments regarding the delay in the prosecution not previously asserted in the trial court, we find those arguments, as well as defendant's Point II, to be of insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We would add only, with respect to Point II, that in urging defendant should have been sentenced in accord with the sentence imposed on defendant Mighty, whose role in the burglary was similar to defendant's and who received a seven-year prison term, the judge emphasized in imposing an eight-year term that defendant had a far more substantial criminal history. There being evidence to support that conclusion, we find no reason to intervene in the judge's exercise of discretion in passing sentence here.

1He was also charged with second-degree burglary while armed with a handgun, N.J.S.A. 2C:18-2; third-degree attempted theft by unlawful taking, N.J.S.A. 2C:20-3(a); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-4(d).