STATE OF NEW JERSEY v. REGINALD BELL

NOT FOR PUBLICATION WITHOUT THE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.

REGINALD BELL,

Defendant-Appellant.

_____________________________

September 5, 2013

Submitted May 15, 2013 Decided

Before Judges Sapp-Peterson and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 10-03-0391.

Joseph E. Krakora, Public Defender, attorney for appellant (Jason Coe, Assistant Deputy Public Defender, of counsel and on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Vando Cardoso, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

PER CURIAM

After his motion to suppress evidence was denied, defendant Reginald Bell, in accordance with a negotiated plea agreement, pled guilty to second-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-5a(1) (count one); third-degree possession of a controlled dangerous substance with the intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7 (count two); and third-degree resisting arrest, N.J.S.A. 2C:29-2a (count six), under Hudson County Indictment No. 10-03-391. He also pled guilty to third-degree bail jumping, N.J.S.A. 2C:29-7, under Accusation No. 668-11. He was sentenced to an aggregate custodial term of eight years. We affirm.

At the time he entered his plea to Indictment No. 10-03-0391, defendant was also facing sentencing in Atlantic County on unrelated drug charges to which he previously pled under Atlantic County Indictment No. 10-3889-01. Each indictment involved offenses that carried a period of mandatory incarceration and periods of parole ineligibility. Under Indictment No. 10-03-0391, the State agreed to recommend no more than an aggregate ten-year custodial term with a four-year period of parole ineligibility concurrent to any sentence imposed on charges pending against defendant in Atlantic County. The court personally questioned defendant on the terms of the plea agreement, the voluntariness of his guilty pleas, as well as the consequences of pleading guilty, including the difficulty in later seeking to withdraw his guilty pleas. The court also questioned defendant about understanding his right to a trial by jury in connection with the charges, his educational background, and whether he was under the influence of "alcohol, drugs or any medicine the doctors gave [him] that could impair [his] judgment." After being satisfied there was a factual basis to accept the guilty pleas and that defendant voluntarily entered the guilty pleas with full knowledge and understanding of the consequences of the guilty pleas, the court accepted defendant's guilty pleas.

When defendant appeared for sentencing in Hudson County five weeks later, defense counsel placed on the record defendant's intention to apply to drug court and the fact that during a conference with the court just before the sentencing hearing commenced, the court suggested that the sentencing proceed with the understanding that the sentence imposed would be stayed if defendant applied to drug court. After speaking with defendant, defense counsel requested "that Your Honor go forward with the sentencing and if Your Honor could stay that so I can get the drug court app[lication] and I will have the drug court app[lication] completed before one o'clock and filed today." The prosecutor, while not objecting to this proposed procedure, stated that defendant's application to drug court was "never part of the plea agreement. The plea agreement was separate and apart." The court imposed sentencing in accordance with the plea agreement and advised defendant that he would be returned to court in two weeks to review whether he was "legally eligible" for admission into drug court. The prosecutor objected and the court imposed sentence.

Defendant was subsequently sentenced in Atlantic County on the unrelated drug charges to a four-year custodial term with a two-year parole disqualifier. He returned to Hudson County Superior Court in December where his attorney expressed the opinion that the issue of defendant's admission into drug court was now moot in light of defendant's Atlantic County sentence. The court lifted the stay and ordered imposition of the sentence.

On appeal, defendant raises the following points.

POINT I

THE TRIAL COURT ERRONEOUSLY FAILED TO ADDRESS BELL'S PENDING APPLICATION TO DRUG COURT.

POINT II

BELL'S SENTENCE WAS EXCESSIVE IN RELATION TO THE OFFENSE, AND IT WAS THE PRODUCT OF AN IMPROPER ANALYSIS OF APPLICABLE AGGRAVATING AND MITIGATING FACTORS.

We have considered the points raised in light of the record, arguments advanced, and applicable legal principles. We conclude the points raised are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following brief comments.

Defendant failed to meet the eligibility requirements for admission into the drug court program, N.J.S.A. 2C:35-14. Additionally, the sentence imposed was in accordance with the negotiated plea agreement, which defendant knowingly and voluntarily entered. State v. Soto, 385 N.J. Super. 247, 254-55, 257 (2006). Moreover, the court found three aggravating factors under N.J.S.A. 2C:44-1a (3), (6) and (9), and no mitigating factors. There is substantial credible evidence in the record to support the sentence imposed and there is no basis to substitute our judgment for that of the trial court. State v. Lawless, ___ N.J. ___, ___ (2013) (slip op. at 19).