STATE OF NEW JERSEY VS. JOSE LUIS SUAREZ (07-04-0573, HUDSON COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1518-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSE LUIS SUAREZ,
Defendant-Appellant.
_______________________________
Submitted May 8, 2017 – Decided May 23, 2017
Before Judges Sabatino and Geiger.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.
07-04-0573.
Jose Luis Suarez, appellant pro se.
Esther Suarez, Hudson County Prosecutor,
attorney for respondent (Stephanie Davis
Elson, Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Jose Luis Suarez appeals the trial court's November
12, 2015 denial of his motion for reconsideration or a change of
his criminal sentence. We affirm.
Defendant was charged in Indictment No. 07-04-0573 with
murder, felony murder, and robbery. Following plea negotiations,
defendant agreed to and did plead guilty to an amended final charge
of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1),
with the State agreeing to dismiss the Indictment's remaining
counts. On January 23, 2009, the trial court sentenced defendant
to a custodial term of sixteen years, with an eighty-five percent
period of parole ineligibility mandated by the No Early Release
Act ("NERA"), N.J.S.A. 2C:43-7.2. The court also imposed five
years of parole supervision, effective upon defendant's release.
Defendant filed a direct appeal of his sentence, which a
panel of this court denied in a January 11, 2012 order on the
Excessive Sentencing Calendar. The panel specifically noted that
it was "satisfied that the sentence is not manifestly excessive
or unduly punitive and does not constitute an abuse of discretion."
The Supreme Court denied defendant's certification petition.
State v. Suarez, 210 N.J. 479 (2012).
Several years later, defendant moved before the trial court
in March 2015 seeking to have his sentence reconsidered or reduced.
His application was denied by Presiding Criminal Judge Sheila A.
Venable in a three-page letter opinion and accompanying order.
Defendant now raises the following points in his brief on
appeal:
2 A-1518-15T4
POINT ONE
THE TRIAL COURT ERRED AND/OR ABUSED ITS
DISCRETION IN FAILING TO RELAX RULE 3:21-
10(a)(b)(3) AND/OR (4) IN THE INTEREST OF
JUSTICE AND FUNDAMENTAL FAIRNESS AND IN
DENYING DEFENDANT'S MOTION FOR
RECONSIDERATION OF SENTENCE; ALTERNATIVELY,
DEFENDANT HAVING MADE A SHOWING OF GOOD CAUSE,
THE PROSECUTING ATTORNEY'S FAILURE TO JOIN HIS
MOTION WAS A CLEAR ERROR OF JUDGMENT AND ABUSE
OF DISCRETION.
POINT TWO
THE TRIAL COURT'S FAILURE TO GRANT DEFENDANT
A HEARING SO AS TO AFFORD HIM A FULL AND FAIR
OPPORTUNITY TO LITIGATE HIS CLAIM FOR RELIEF
AND MAKE ADEQUATE FINDINGS OF FACT AND
CONCLUSIONS OF LAW AS REQUIRED BY RULE 3:29
WAS ERROR AND/OR ABUSE OF DISCRETION,
DEPRIVING DEFENDANT OF HIS CONSTITUTIONAL
RIGHTS TO DUE PROCESS, EQUAL PROTECTION AND
FREE ACCESS TO THE COURTS.
Having duly considered these arguments, we affirm the denial of
relief substantially for the reasons set forth by Judge Venable.
We add that defendant's motion to reconsider his sentence was
untimely because it was filed long past the maximum seventy-five
day deadline prescribed by Rule 3:21-10(a). Defendant's
circumstances fit none of the timeliness exceptions set forth in
Rule 3:21-10(b). Moreover, NERA plainly imposes a mandatory period
of parole ineligibility for certain enumerated crimes, including
first-degree aggravated manslaughter. N.J.S.A. 2C:43-7.2(d).
"[A] sentence cannot be changed or reduced under Rule 3:21-10(b)
3 A-1518-15T4
below the parole ineligibility term required by statute." State
v. Mendel, 212 N.J. Super. 110, 113 (App. Div. 1986). There is
nothing illegal about defendant's sentence, and he cannot seek to
reduce it until he has completed the mandatory parole ineligibility
period. The trial court correctly recognized that there was no
need to conduct any evidentiary hearing on defendant's meritless
arguments.
Affirmed.
4 A-1518-15T4