STATE OF NEW JERSEY v. OMAR T. CROSS

NOT FOR PUBLICATION WITHOUT THE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.

OMAR T. CROSS,

Defendant-Appellant.

____________________________________

January 23, 2014

Submitted January 13, 2014 Decided

Before Judges Harris and Kennedy.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-04-0523.

Joseph E. Krakora, Public Defender, attorney for appellant (Mark P. Stalford, Designated Counsel, on the brief).

Grace H. Park, Acting Union County Prosecutor (Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

After pleading guilty to a violation of special probation, N.J.S.A. 2C:35-14, defendant Omar T. Cross appeals from the September 14, 2010 judgment of conviction for third-degree possession of a controlled dangerous substance with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3), that imposed a sentence of five years in prison with a three-year period of parole ineligibility. We affirm.

I.

In 2005, Cross was indicted by a Union County grand jury and charged with three crimes related to the possession of cocaine. On July 11, 2005, Cross entered into a plea arrangement with the State by which he pled guilty to third-degree possession of a controlled dangerous substance with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3). The State agreed to recommend that, instead of a potential maximum extended term sentence of ten years with five years of parole ineligibility,1 Cross be sentenced to five years special probation in Drug Court.

On August 11, 2005, Cross received the bargained-for sentence of five years special probation in Drug Court. In August 2007, Cross pled guilty to a violation of his special probation. Nevertheless, the court continued Cross in Drug Court. Three years later, Cross again pled guilty to a violation of his special probation, which resulted in the sentence under review. This appeal followed.

II.

On appeal, Cross raises the following issues for our consideration:

POINT I: THE COURT, ERRONEOUSLY BELIEVING DEFENDANT WAS SUBJECT TO A MANDATORY SENTENCE PURSUANT TO N.J.S.A. 2C:43-6f, IMPOSED AN ILLEGAL SENTENCE.

POINT II: THE IMPOSITION OF A FIVE YEAR TERM WITH A THREE YEAR PERIOD OF PAROLE INELIGIBILITY ON DEFENDANT'S VIOLATION OF PROBATION WAS EXCESSIVE.

Cross further relies principally upon State v. Vasquez, 129 N.J. 189, 197-210 (1992), which concerns the revocation of a probationary sentence on the State's waiver of a parole ineligibility term mandated by N.J.S.A. 2C:35-7. See N.J.S.A. 2C:35-12. Because Vasquez does not address special probation, we consider it inapplicable to Cross's situation.

In State v. Bishop, 429 N.J. Super. 533, 536 (App. Div.), certif. granted, 216 N.J. 14 (2013), we addressed "the principles applicable to resentencing a defendant whose special probation pursuant to N.J.S.A. 2C:35-14 has been permanently revoked." Special probation is "a separate and distinct sentencing disposition authorized by the [New Jersey] Code [of Criminal Justice," id. at 540, and accordingly "provide[s] a separate [violation of probation] sentencing regime than that which had previously existed and continues to exist for regular probation." Id. at 547. Thus, upon permanent revocation of his five-year special probation, Cross was not subject to the sentencing paradigm applicable to revocation of regular probation, and instead became subject to the potential term outlined during his plea colloquy.

We have considered this record and Cross's arguments in light of Bishop, and we conclude that Cross's arguments lack sufficient merit to warrant discussion beyond what is stated in Bishop. R. 2:11-3(e)(2). For the reasons stated in Bishop, Cross's sentence is controlled by and consistent with N.J.S.A. 2C:35-14(f), :35-7, :43-6(f), :43-7 and :44-1(a) to (b). The sentence of five years in prison with a three-year parole disqualifier comports with these statutes. Additionally, the sentence is neither shocking to the conscience nor an abuse of discretion. See State v. Bieniek, 200 N.J. 601, 608 (2010).

1 During the plea colloquy, the plea judge told Cross that because of Cross's prior conviction for possession with the intent to distribute a controlled dangerous substance, "if [Cross] went to trial on this case, and were convicted of possession with intent to distribute, [his] sentencing exposure would be [ten] years in State Prison with a five-year period of mandatory parole ineligibility."