STATE OF NEW JERSEY VS. ALEXIS DEJESUS(99-01-0102, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-0759-15T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALEXIS DEJESUS, a/k/a
ALEXIS DEJESUS-REYES,
ALEXIS RODRIGUEZ, "FRIJOL,"

Defendant-Appellant.
________________________________

Submitted April 5, 2017 – Decided June 7, 2017

Before Judges Alvarez and Lisa.

On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No. 99-
01-0102.

Alexis DeJesus, appellant pro se.

Carolyn A. Murray, Acting Essex County
Prosecutor, attorney for respondent (Maria I.
Guerrero, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief.

PER CURIAM
 Defendant appeals from the September 8, 2015 order denying

his motion to correct an illegal sentence. For the reasons that

follow, we affirm.

After being convicted by a jury for multiple crimes committed

on July 25, 1998, defendant was sentenced to an aggregate term of

sixty-four years subject to the No Early Release Act (NERA),

N.J.S.A. 2C:43-7.2. More specifically, the base terms imposed

were forty-years for first-degree felony murder, and eight-years

each for three counts of second-degree aggravated assault, with

all terms ordered to be served consecutively.

Defendant filed a direct appeal, and we issued our decision

on February 17, 2004, State v. DeJesus, No. A-5736-00 (App. Div.

February 17, 2004), certif. denied, 180 N.J. 452 (2004). We

affirmed defendant's convictions and addressed the sentencing

arguments he made. In doing so, we reversed the NERA component

of the felony murder sentence because it was not authorized under

the version of NERA in effect at the time of defendant's crime or

sentence. On remand with respect to that issue, the trial court

left in place the forty-year base term originally imposed, and

replaced the eighty-five percent NERA parole disqualifier with a

thirty-year parole disqualifier. At the time of defendant's crime

and sentence, and to the present time, thirty years is the minimum

allowable parole disqualifier for murder. N.J.S.A. 2C:11-3b(1).

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 Defendant subsequently filed a petition for post-conviction

relief, asserting ineffective assistance of counsel. The petition

was denied by the trial court. We affirmed in our opinion of

March 9, 2009. State v. DeJesus, No. A-5322-06 (App. Div. March

9, 2009), certif. denied, 199 N.J. 516 (2009).

Six years later, on August 26, 2015, defendant filed a pro

se motion to correct an illegal sentence. Specifically, his motion

challenged as illegal two aspects of the sentence imposed on the

three second-degree aggravated assault counts: (1) that the NERA

component imposed on those sentences was illegal, and (2) that

requiring those sentences to be served consecutively rather than

concurrently was also illegal.

The trial court denied the motion by order of September 8,

2015, accompanied by a written statement of reasons. The judge

noted that defendant had raised both of those issues on direct

appeal and they were both rejected by this court in our February

17, 2004 decision. The judge therefore concluded that defendant

was barred from re-litigating them more than a decade after they

had been resolved on appeal.

In the present appeal, defendant presents these arguments:

POINT I: THE TRIAL COURT VIOLATED THE EX POST
FACTO CLAUSE BY ILLEGALLY IMPOSING THE NO
EARLY RELEASE ACT TO COUNTS 2, 3, AND 4
(Second-Degree Aggravated Assault Charges) AS
THE DEFENDANT WAS SENTENCED PRIOR TO THE 2001

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 AMENDMENTS TO NERA, THEREFORE, DEFENDANT'S
SENTENCE AS TO THOSE COUNTS ARE ILLEGAL AND
MUST BE CORRECTED. (U.S. Const., Art. I, 10,
cl. 1; N.J. Const. (1947), Art. IV, sec. VII,
cl. 3) (Partially Raised Below).

POINT II: DEFENDANT WAS ENTITLED TO THE
PRESUMPTIVE TERMS FOR SECOND-DEGREE
AGGRAVATED ASSAULT COUNTS. (Raised Below).

POINT III: THE 40-YEAR SENTENCE IMPOSED ON
COUNT SEVEN (Felony Murder) IS ABOVE THE
MINIMUM 30-YEAR SENTENCE AUTHORIZED BY
N.J.S.A. 2C:11-3b(1), THEREFORE MUST BE
CORRECTED. (Not Raised Below).

These arguments lack sufficient merit to warrant discussion in a

written opinion. See R. 2:11-3(e)(2). We provide these brief

comments.

The argument raised in Point I, that NERA should not have

been applied to the three aggravated assault counts, was raised

on direct appeal, and we rejected it. See DeJesus, supra, No. A-

5736-00 (slip op. at 26). We explained in detail the reasons for

rejecting this argument and there is no basis upon which to revisit

it now.

Likewise, although not referenced in the Point I heading, in

the body of his argument defendant argues that he should have been

given concurrent rather than consecutive sentences on the three

aggravated assault counts. In our prior opinion on direct appeal,

we also considered and rejected that argument, explaining our

reasons in detail. DeJesus, supra, No. A-5736-00 (slip op. at 27-

4 A-0759-15T2
30). There is no basis upon which we should now address this

matter, which we adjudicated more than a decade ago.

In Points II and III, defendant argues that the base terms

imposed were excessive. He did not raise these arguments on direct

appeal or in his post-conviction relief proceeding. Further,

these issues were not raised in the motion which is the subject

of this appeal, and accordingly are not cognizable on appeal.

State v. Robinson, 200 N.J. 1, 20-22 (2009). Finally, the

arguments are lacking in substantive merit. The sentencing judge

articulated, with adequate support in the record, the

applicability of two aggravating factors and the non-applicability

of any mitigating factors. The preponderance of aggravating

factors justified the base terms imposed.

Affirmed.

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