STATE OF NEW JERSEY VS. CRUZ MARTINEZ, JR. (13-08-1528, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0395-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CRUZ MARTINEZ, JR.,
Defendant-Appellant.
__________________________________________________
Argued April 25, 2017 – Decided May 15, 2017
Before Judges Yannotti, Fasciale and
Sapp-Peterson.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.
13-08-1528.
Marcia Blum, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E.
Krakora, Public Defender, attorney; Ms. Blum,
of counsel and on the brief).
Erin M. Campbell, Assistant Prosecutor, argued
the cause for respondent (Esther Suarez,
Hudson County Prosecutor, attorney; Ms.
Campbell, on the brief).
PER CURIAM
Defendant Cruz Martinez, Jr. was tried before a jury and
found guilty of murder and other offenses. The court sentenced
defendant to life imprisonment, subject to the No Early Release
Act (NERA), N.J.S.A. 2C:43-7.2. He appeals from the judgment of
conviction dated July 27, 2015. We affirm defendant's convictions
and the sentences imposed, but remand the matter to the trial
court for entry of a corrected judgment of conviction.
I.
Defendant was charged with the first-degree murder of Alisha
Colon, N.J.S.A. 2C:11-3(a)(1), 2C:11-3(a)(2) (count one); first-
degree felony-murder of Alisha Colon, N.J.S.A. 2C:11-3(a)(3)
(count two); second-degree burglary, N.J.S.A. 2C:18-2 (count
three); second-degree unlawful possession of a weapon, N.J.S.A.
2C:39-5(b) (count four); second-degree possession of a weapon for
an unlawful purpose, N.J.S.A. 2C:39-4(a) (count five); and second-
degree certain persons not to possess a weapon, N.J.S.A. 2C:39-
7(b) (count six).
At the trial, evidence was presented which established that
on January 17, 2013, there was a dispute at W.F.'s apartment on
Belgrove Drive in Kearny, where W.F. had been living with her
three children and other family members.1 The dispute became
physical, and W.F.'s niece accidentally struck W.F. W.F.'s niece
called her father, E.M., who arrived outside the apartment. E.M.
1 We use initials for many of the persons involved in order to
protect their privacy.
2 A-0395-15T1
took out a machete and warned those present to stay away from him
and his daughter. The police were called and they arrested E.M.
Thereafter, W.F. went to the police station and filed a complaint
against E.M.
W.F. left the police station, and picked up her seven-year-
old son, I.F. She dropped I.F. off at the apartment, leaving him
with her daughter Alisha Colon, who was sixteen years old. I.F.
and Alisha were the only individuals present in the apartment.
Alisha ordered food. While Alisha and I.F. were waiting for the
food delivery, they watched television.
After the altercation at W.F.'s apartment, Lamar Farrar met
defendant at Farrar's apartment in East Orange. Farrar was there
with his friend, Eric Shelton. Defendant told Farrar that E.M. had
been arrested earlier that day. Farrar and Shelton agreed to be
defendant's "back up." Defendant left the apartment, but said he
would be back later. He told Farrar and Shelton to change into
black clothing.
About an hour or two later, defendant returned to Farrar's
apartment with another individual. They smoked cigarettes and
drank beer for a while. The four men later left Farrar's apartment
and drove to Kyeeth Smith's residence, where they remained for
several hours. They then drove to W.F.'s apartment building.
3 A-0395-15T1
Defendant, Farrar, and Shelton entered the building. They
proceeded to the second floor while Smith remained in the car.
Defendant pushed the door to W.F.'s apartment open with his
shoulder, and he drew a firearm. Defendant entered the bedroom and
shot Alisha in the head, above the eyebrow. Medical testimony
established that the shot was fired six to twelve inches from her
head. She did not die instantly, but the gunshot caused her death.
After the shooting, defendant, Farrar, Shelton, and Smith
returned to Farrar's apartment. Defendant told Farrar to bring a
gun into the apartment and Farrar complied. Around this time, J.F.
arrived at the apartment with another person. Defendant told J.F.
that the young girl who had been living in W.F.'s apartment was
dead. According to J.F., defendant said he also had seen a young
boy at the apartment, but he did not feel like killing two people.
J.F. later told detectives that defendant said he wanted to send
a message not to mess with his family.
The police responded to the scene of the shooting. They
noticed the door to W.F.'s apartment was slightly ajar, and the
door's top hinge and molding were broken. The police entered the
bedroom where they found Alisha's body. Homicide detectives from
the Hudson County Prosecutor's Office (HCPO) arrived at the
apartment. They recovered a spent shell casing from a pillow near
Alisha's head. Later, after being informed there was an exit wound
4 A-0395-15T1
on the body, a detective returned to the apartment and recovered
a projectile in the room where Alisha was shot.
On January 19, 2013, I.F. was shown a photo array, and he
identified defendant as the man who shot Alisha. I.F. was shown
other photo arrays with photos of Farrar and Smith, but he could
not identify or recognize the persons in any of the photos.
Farrar and J.F. testified at trial. Farrar stated that when
he entered W.F.'s apartment with defendant and Shelton, he heard
someone say, "no — stop — don't — please." He then heard a gunshot.
When Farrar turned and looked into the room, he saw the victim
lying there.
Defendant did not testify at trial. He presented one witness
who was in the vicinity of W.F.'s apartment at approximately 5:00
p.m. on the day of the shooting. The witness said she saw either
three or four men running from the building to a dark car.
The jury found defendant guilty on all charges. The judge
later sentenced defendant and filed a judgment of conviction dated
July 27, 2015. This appeal followed.
On appeal, defendant raises the following arguments:
POINT I
THE TRIAL COURT COERCED A JUROR INTO REACHING
A VERDICT.
5 A-0395-15T1
POINT II
THE LIFE TERM IS EXCESSIVE AND IS BASED ON AN
INAPPLICABLE AGGRAVATING FACTOR.
II.
Defendant first argues that he was denied the right to a fair
trial because the trial judge improperly coerced a juror to reach
a verdict.
"[T]he right to a jury trial in criminal matters is one of
the founding principles of [the] Republic and is guaranteed by
both the Sixth Amendment of the Constitution to the United States,
and Article I, Paragraph [Ten] of the New Jersey Constitution."
State v. Dorsainvil, 435 N.J. Super. 449, 480 (App. Div. 2014)
(citing United States v. Gagnon, 470 U.S. 522, 526, 105 S. Ct.
1482, 1484, 84 L. Ed. 2d 486, 490 (1985); State v. A.R., 213 N.J.
542, 557 (2013)). "The role of the jury as the judges of facts is
predicated on the integrity of the deliberative process." Id. at
481 (citing State v. Corsarao, 107 N.J. 339, 346 (1987)).
In assessing whether a trial court has acted appropriately
when informed that the jury cannot reach a unanimous verdict, we
consider whether the court's supplemental instruction improperly
had the capacity to influence any dissenting juror to change his
or her vote. Ibid. (citing State v. Figueroa, 190 N.J. 219, 237-
38 (2007)). We also must consider "the weighty role that the judge
6 A-0395-15T1
plays in the dynamics of the courtroom" and whether the court
"improperly coerced the jury into returning a verdict." Ibid.
(quoting Figueroa, supra, 190 N.J. at 237-38).
When the jury has not yet reached its verdict, "a trial judge
must be especially vigilant to avoid communicating a results-
oriented message that could be perceived as intolerant of dissent
and antagonistic to the free expression of strongly held beliefs
that may not be shared by a majority of the deliberating jurors."
Ibid. The trial court must recognize that jurors "accord great
weight and deference to even the most subtle behaviors of the
trial judge." Figueroa, supra, 190 N.J. at 238.
Furthermore, the trial judge may not "undo a jury deadlock
by focus[ing] upon possibly the weakest links in the chain locking
the jury in disagreement, namely, the minority holdouts on the
jury." State v. Gleaton, 446 N.J. Super. 478, 515 (App. Div. 2016)
(alteration in original) (quoting State v. Nelson, 304 N.J. Super.
561, 565-66 (App. Div. 1997)).
Our Supreme Court has approved the following supplemental
instructions to be given to the jury in cases where the jury has
not been able to reach a decision:
It is your duty, as jurors, to consult with
one another and to deliberate with a view to
reaching an agreement, if you can do so
without violence to individual judgment. Each
of you must decide the case for yourself,
7 A-0395-15T1
but [you should] do so only after an impartial
consideration of the evidence with your fellow
jurors. In the course of your deliberations,
do not hesitate to reexamine your own views
and change your opinion if convinced it is
erroneous. But do not surrender your honest
conviction as to the weight or effect of
evidence solely because of the opinion of
your fellow jurors, or for the mere purpose
of returning a verdict.
You are not partisans. You are judges – judges
of the facts.
[State v. Czachor, 82 N.J. 392, 405 n.4 (1980)
(citations omitted).]
Here, the trial record shows that late in the afternoon on
the second day of the jury's deliberations, the judge received a
note from the jury stating, "We have a juror who refuses to
deliberate. What should we do?" The judge had the jurors return
to the courtroom, and, consistent with Czachor, the judge provided
the following instruction:
It is your duty, as jurors, to consult with
one another and to deliberate with a view to
reaching an agreement, if you can do so
without violence to individual judgment.
Each of you must decide the case for yourself,
but do so only after an impartial
consideration of the evidence with your fellow
jurors.
In the course of your deliberations, do not
hesitate to re-examine your own views and
change your opinion if convinced that it is
erroneous but do not surrender your honest
conviction as to weight or effect of the
evidence solely because of the opinion of your
8 A-0395-15T1
fellow jurors, or for the mere purpose of
returning a verdict. You are not partisans.
You are judge, judge of the facts.
Thereafter, the judge decided to identify the juror who had
prompted the note, and the extent and nature of the problem. The
judge interviewed the jurors individually, and determined that
Juror No. 2 was the juror in question. The juror told the judge
he had not refused to deliberate. He explained that there was a
lot of evidence to process, and he thought the other jurors were
"rushing." He said that since it was late in the afternoon, he
thought the jurors should take a break, go home for the weekend,
"think about [it]," and resume deliberations the following Monday.
The judge twice asked the juror whether he was merely saying
that he had enough that day or that he was absolutely refusing to
deliberate. The juror replied that he wanted to "break" and "catch
up from this point" later. The judge told the juror to return to
the jury room, and after questioning the other jurors, determined
that no other juror had refused to deliberate.
At approximately 5:00 p.m., the judge conferred with counsel
and decided to have the jury continue deliberations the following
Monday. The judge again questioned Juror No. 2 individually. The
following colloquy ensued:
THE COURT: Hi sir. Okay. So after conferring
with each of the jurors, I have three
questions for you.
9 A-0395-15T1
JUROR [NO.] 2: Yes.
THE COURT: One, you understand, sir, that your
deliberation has to be based on your decision
as an individual juror, but in conjunction
with your fellow jurors deliberating and
attempting to reach a verdict. Do you
understand that?
JUROR [NO.] 2: Yes. Yes, I do.
THE COURT: Okay. You understand, sir, that you
have to be willing to participate and . . .
deliberate with your fellow jurors? You can't
just refuse. You can, but if you refuse to
deliberate, then you have to be removed from
the jury. So what I'm asking you is are you
refusing to deliberate with your fellow
jurors?
JUROR [NO.] 2: No. All I am saying is there
are all [these] facts that – you know,
everybody's splitting here and there. They are
giving these facts . . . . Already like I was
telling, Your Honor. It [is] like everyone has
already made up their mind. We have to digest
the facts as we go, look at the evidence,
because that's this (inaudible) all that.
THE COURT: Sure.
JUROR [NO.] 2: So as we go through, I'm like
now this is too much. This take a break a
little bit, digest what we just read, and what
everybody else say, so that . . . .
THE COURT: Okay.
JUROR [NO.] 2: [W]e can move forward.
THE COURT: Okay.
JUROR [NO.] 2: Yeah.
10 A-0395-15T1
THE COURT: Here's the thing. You've been given
all of the facts and the evidence.
JUROR [NO.] 2: Yes.
THE COURT: Nothing's changing about that.
JUROR [NO.] 2: Okay.
THE COURT: So while you can discuss what it
is, and how you view it, and what you think
that means in terms of applying the facts of
the evidence and the law, nothing about the
facts are going to change.
So my question for you is I need to make sure
that this is not a situation where you're
simply afraid to reach a decision?
JUROR [NO.] 2: No.
THE COURT: Okay.
JUROR [NO.] 2: It's not.
THE COURT: I need to make sure that it's not
a situation where you feel like you need to
go home and research to assist your decision.
JUROR [NO.] 2: No, I'm not researching.
THE COURT: Okay.
JUROR [NO.] 2: I am just internalizing all
these pieces that everybody has been saying,
what we have read in there, booklet that you
give us . . .
THE COURT: Uh-huh.
JUROR [NO.] 2: [S]o that I can see how all of
these facts fit in.
THE COURT: Okay.
11 A-0395-15T1
JUROR [NO.] 2: When I make – decide – I pick
a solution to two or one of them (inaudible)
over there.
THE COURT: Right. Uh-huh.
JUROR [NO.] 2: I know exactly that in my
conscience, this what it tells me.
THE COURT: Okay.
JUROR [NO.] 2: But when everybody else in the
room says we have decided – we have decided.
No, I'm not ready to make that decision.
THE COURT: Okay. Well, what I'm asking you,
sir, though is that . . . if you're telling
me that you're done deliberating today you
can't process any more information. Then I
will give you the time and I will let you all
begin deliberations on another day.
JUROR [NO.] 2: Exactly.
THE COURT: But if you're telling me that you
. . . just need to keep processing and you're
not ready to make a decision, you're not ready
to make a decision, we can't have you just
keep saying you need to come back a different
day, you need to come back a different time.
JUROR [NO.] 2: No, . . . we were okay all the
way until that time and everybody was
discussing. We kept on reading that . . .
(inaudible).
THE COURT: Right. But here's the thing. If
. . . your fellow jurors have decided that you
all have discussed it . . . .
JUROR [NO.] 2: Uh-huh.
THE COURT: [A]nd there's nothing left to
discuss, and now they're taking a vote, you
have to actively participate in that voting.
12 A-0395-15T1
JUROR [NO.] 2: Okay. Uh-huh.
THE COURT: It doesn't mean you have to agree
with them.
JUROR [NO.] 2: Uh-huh. Uh-huh.
THE COURT: You . . . don't have to surrender
your own individual decision. But you have to
vote.
JUROR [NO.] 2: Yes.
THE COURT: You can't just say I'm not voting,
because then you're not deliberating.
JUROR [NO.] 2: Okay.
THE COURT: Do you understand what I'm saying.
JUROR [NO.] 2: Yes.
THE COURT: So with that being said, if I were
to send you back into the jury room with your
fellow jurors, are you in a position, if they
say let's take a vote on this charge or these
charges, are you prepared to participate in
that deliberation process?
JUROR [NO.] 2: Yes.
THE COURT: I'm not forcing you to make a
decision . . . .
JUROR [NO.] 2: Your Honor . . . .
THE COURT: [O]ne way or the other.
[. . . .]
THE COURT: But you have to actively
participate in deliberations.
JUROR [NO.] 2: Okay.
13 A-0395-15T1
THE COURT: [I]f the question was whether the
tie is . . . gold and he has to vote and I
have to vote, and we say well, it looks more
yellow or it looks more gold, or, you know, I
think it's gold, because the expert said it's
gold, or I think it's yellow, because the
other expert said it's yellow. And then they
say okay. Has everybody talked about
everything about this tie? Yes. All right.
It's time to vote.
Do you find yellow or gold? Do I find yellow
or gold? I can't just say I'm not doing
anything. You have to deliberate.
JUROR [NO.] 2: Okay.
THE COURT: So if . . . you can't make a
decision, you can say I can't make a decision
. . . .
JUROR [NO.] 2: Uh-huh.
THE COURT: [B]ut you have to actively
participate in a deliberation.
JUROR [NO.] 2: Okay. Okay.
THE COURT: So are you telling me that you need
time because you're spent and you have nothing
left to do today, or are you saying to me that
. . . you misunderstood and now if I send you
back in there, you are able to participate
with your fellow jurors and deliberate?
JUROR [NO.] 2: I will participate. I will
participate. No problem.
The juror returned to the jury room, and the judge briefly
discussed the matter with the attorneys, with the expectation that
the jury could continue deliberations until 6:00 p.m., if they
wanted to, and return on Monday for further deliberations. The
14 A-0395-15T1
jurors returned to the courtroom, and the judge provided the
following instruction:
[W]e want you to know . . . that we're neither
rushing you, nor prohibiting you, or
attempting to preclude you from being able to
do what you need to do in the jury deliberation
room, whatever that may be.
That being said, I've taken the opportunity
with the attorney[s] to confer with each of
you and I believe that each of you now
remembers and understands your
responsibilities as jurors to deliberate with
one another. That deliberation requires that
you each participate in the full deliberation
with your fellow jurors in the jury room.
That having been said, now that everyone is
aware of their responsibilities as a juror,
with regard to the deliberating jurors, we'd
like to know, now that we have expressed and
explained to each of you what your
responsibilities are as a deliberating juror
with one another, whether you would, at this
point, like some additional time today to
continue with your deliberations.
We will allow you until 6:00 [p.m] if you'd
like to continue to deliberate, knowing that
now everyone is aware that they must fully
participate in the deliberation. So just for
the deliberating jurors, by show of hands, how
many of you would like to continue
deliberating today?
So it looks like [that is] everyone? I think
that's everyone, right? Yes. Okay.
So we're going to send you back into the jury
room.
15 A-0395-15T1
The jurors returned to the jury room, and shortly thereafter
informed the judge that they had reached a verdict. Before
receiving the verdict, the judge decided to question Juror No. 2
again, in order "to make sure that he understood that there was
no issue with regards to him going back in to [deliberate], that
he didn't feel rushed to make a decision, and that his verdict is
a true verdict based on his understanding that he . . . should
deliberate with his fellow jurors" and make a decision.
The judge then questioned Juror No. 2 individually, and the
following exchange took place.
THE COURT: We wanted to bring you back out
here to make sure that you understood that I
was affording you the opportunity after
explaining to you that you have to continue
to deliberate with your fellow jurors,
irrespective of what your decision would be.
Whether you agreed with them, disagreed with
them, or was not able to make a decision.
First, do you understand that that was what I
told you to do?
JUROR [NO.] 2: Yes.
THE COURT: Okay. Having understood that, I
want to make sure . . . that my instructions
to you separately and apart or anything else
that occurred after that did not pressure you
to make a decision with regards to your
deliberation or verdict in this case?
JUROR [NO.] 2: No.
THE COURT: Okay. Did you truly exercise your
own conscience, decide with your fellow jurors
16 A-0395-15T1
what your decision was going to be, and make
that decision based on what you believe the
evidence, and the facts, and the law says?
JUROR [NO.] 2: Yes.
THE COURT: Did anyone force you, threaten you,
rush you, or coerce you into making a
decision?
JUROR [NO.] 2: No.
THE COURT: Is the jury (sic) based on your
understanding of the law and the facts as I
explained it to you or is it simply for the
purposes of reaching a verdict?
JUROR [NO.] 2: With the law.
THE COURT: Okay. You're sure?
JUROR [NO.] 2: Yes.
THE COURT: Okay. Do you . . . need me to speak
to you outside the presence of the attorneys
or is this a true statement?
JUROR [NO.] 2: No, it's okay. No, I'm fine.
Based on this record, we reject defendant's contention that
the judge improperly coerced Juror No. 2 to reach a verdict. As
the transcript makes clear, the judge questioned the juror to
determine if he was refusing to deliberate. The juror initially
stated that he needed more time to consider the evidence.
The judge properly pointed out that the juror had a duty to
review the evidence with the other jurors, and he could not refuse
to do so. The judge emphasized that the juror did not have to
17 A-0395-15T1
agree with the other jurors. The judge told the juror that she was
not forcing him to make a decision, but he was required to
deliberate with the other jurors. The juror agreed to deliberate.
Furthermore, as the record shows, the judge agreed to allow
the jurors to continue deliberations until 6:00 p.m. and they
could resume their deliberations the following Monday. The judge
questioned the jurors and they all agreed to continue
deliberations.
In addition, after the jury informed the judge that it had
reached a verdict, the judge again questioned Juror No. 2. As
noted, he stated that he did not feel pressured by the judge's
questions and instructions. The juror confirmed that he did not
feel he had been coerced or forced to make a decision.
We conclude that, based on the record, the judge did not
abuse her discretion by the manner in which she questioned Juror
No. 2, and the instructions to that juror and the jury as a whole
were proper. The juror was not coerced to reach a decision, and
defendant was not denied his right to a fair trial.
III.
Defendant also argues that his sentence is excessive. Here,
the judge found aggravating factors one, N.J.S.A. 2C:44-1(a)(1)
(nature and circumstances of the offense); three, N.J.S.A. 2C:44-
1(a)(3) (risk that defendant will commit another offense); six,
18 A-0395-15T1
N.J.S.A. 2C:44-1(a)(6) (extent of defendant's prior criminal
record); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant
and others from violating the law). The judge found no mitigating
factors.
On count one (murder), the judge sentenced defendant to life
imprisonment, subject to NERA. The judge explained that this
"translates" to seventy-five years, and he must serve eighty-five
percent of that sentence before becoming eligible for parole. The
court merged count five (unlawful possession of a firearm) with
count three (burglary), and sentenced defendant on count three to
a concurrent term of ten years of incarceration, subject to NERA.
In addition, the judge sentenced defendant to a ten-year term
on count four (unlawful possession of a weapon), with a five-year
period of parole ineligibility; and a concurrent ten years on
count six (certain persons not to have weapons), with five years
of parole ineligibility. The judge also imposed appropriate fines
and penalties.
On appeal, defendant argues that the judge erred by finding
aggravating factor one. He contends that that finding was not
supported by the evidence. He also argues that his prior criminal
record does not support the findings on aggravating factors three,
six, and nine.
19 A-0395-15T1
The scope of our review of the trial court's "sentencing
decisions is relatively narrow and is governed by an abuse of
discretion standard." State v. Blackmon, 202 N.J. 283, 297 (2010).
We may not set aside a sentence unless the trial court did not
follow the sentencing guidelines; the court's findings of
aggravating and mitigating factors were not based upon sufficient
credible evidence in the record; or the court's application of the
sentencing guidelines to the facts of the case "shock[s] the
judicial conscience." State v. Bolvito, 217 N.J. 221, 228 (2014)
(alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-
65 (1984)).
We are convinced that the court's findings of the aggravating
factors is supported by sufficient credible evidence in the record.
The finding of aggravating factor one was amply justified by the
evidence, which indicated that defendant forced his way into the
victim's home, searched the apartment for Alisha and her brother,
and shot Alisha while she was pleading for her life. See State v.
O'Donnell, 117 N.J. 210, 217-18 (1989) (holding that aggravating
factor one may be found when the offense is committed in a manner
to maximize the victim's pain). Moreover, the finding of
aggravating factor one was justified by the anguished reaction of
her young brother, who witnessed the shooting. See State v.
Lawless, 214 N.J. 594, 615 (2013) (noting that the finding of
20 A-0395-15T1
aggravating factor one can be based on the harm to persons other
than the immediate victim of the offense).
We also reject defendant's contention that his criminal
record does not support the findings of aggravating factors three,
six, and nine. Defendant has a juvenile record, and his adult
record includes convictions for receiving stolen property,
aggravated assault, aggravated arson, and armed robbery. He has
twice been sentenced to incarceration in State prison. He also has
been arrested at least six times for violent and assaultive crimes.
Defendant contends that his record does not justify the
court's findings because his convictions for assault and receiving
stolen property are twenty-five years old, and his convictions for
arson and robbery are seventeen years old. He also argues that the
instant offense is the only offense in which he was charged with
firing a gun. These arguments are without sufficient merit to
warrant comment. R. 2:11-3(e)(2).
We conclude that the trial judge followed the sentencing
guidelines, the judge's findings are supported by sufficient
credible evidence, and the sentences imposed are a reasonable
exercise of the court's sentencing discretion.
We note, however, that the judge sentenced defendant to a
term of life imprisonment. If defendant is convicted of a NERA
offense, he must serve eighty-five percent of the sentence before
21 A-0395-15T1
becoming eligible for parole. N.J.S.A. 2C:43-7.2(a). Murder is a
NERA offense. N.J.S.A. 2C:43-7.2(d)(1). NERA provides that
"[s]olely for the purpose of calculating the minimum term of parole
ineligibility pursuant to subsection a. of this section, a sentence
of life imprisonment shall be deemed to be [seventy-five] years."
N.J.S.A. 2C:43-7.2(b).
Here, the judge noted that, under NERA, a sentence of life
imprisonment "translates" to a seventy-five year sentence. The
judge made this statement when explaining to defendant the time
he would have to serve in prison before becoming eligible for
parole. However, the judgment of conviction erroneously states
that defendant was sentenced on count one to seventy-five years
of incarceration. The judgment of conviction should be amended to
reflect the sentence imposed on count one, which was a sentence
of life in prison.
Affirmed and remanded to the trial court to enter an amended
judgment of conviction in accordance with this opinion. We do not
retain jurisdiction.
22 A-0395-15T1