NOT FOR PUBLICATION WITHOUT THE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-1078-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RAFAEL RODRIGUEZ, a/k/a
PETER RODRIGUEZ,
Defendant-Appellant.
_______________________________
Argued March 7, 2017 – Decided March 23, 2017
Before Judges Yannotti, Fasciale and Gilson.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No. 15-
05-1080.
Stephen W. Kirsch, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
Mr. Kirsch, of counsel and on the brief).
Jennifer E. Kmieciak, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney;
Jeffrey P. Mongiello, Deputy Attorney General,
on the brief).
PER CURIAM
Defendant appeals from his conviction for a third-degree
violation of the conditions on his special sentence of community
supervision for life (CSL), N.J.S.A. 2C:43-6.4(d). We reverse.
In 1998, defendant pled guilty to two counts of third-degree
endangering the welfare of a child, N.J.S.A. 2C:24-4(a), for crimes
he committed in 1997. The court sentenced him to a probationary
term of three-and-one-half years, and imposed a special sentence
of CSL, N.J.S.A. 2C:43-6.4. At that time, a violation of a
condition of his CSL constituted a crime of the fourth degree.
Effective July 1, 2014, the Legislature amended N.J.S.A.
2C:43-6.4(a) and (d) (the 2014 amendment), to upgrade a violation
of a condition of CSL to a third-degree offense, and to add
convictions for a violation of CSL to the list of predicate crimes
that mandate the imposition of parole supervision for life (PSL).
In March 2015, defendant failed to report to his parole officer
as required by the conditions of his CSL. See N.J.A.C. 10A:71-
6.11(b)(2).
In May 2015, a grand jury indicted defendant and charged him
with two counts of third-degree violations of the conditions of
his CSL, contrary to N.J.S.A. 2C:43-6.4, for conduct allegedly
occurring in March 2015. In August 2015, he pled guilty to count
one in exchange for the dismissal of count two. In September
2015, the court sentenced defendant, in accordance with the plea
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agreement, to a prison term of three years, and imposed a mandatory
special sentence of PSL under N.J.S.A. 2C:43-6.4(a).
On appeal, defendant argues:
PURSUANT TO THE RECENT EX POST FACTO DECISIONS
IN STATE V. PEREZ AND STATE V. F.W.
DEFENDANT'S CONVICTION SHOULD BE REVERSED.
DEFENDANT WAS ONLY ELIGIBLE TO BE CONVICTED
OF THE FOURTH-DEGREE VERSION OF N.J.S.A.
2C:43-6.4[(d)] AND SHOULD NOT HAVE HAD HIS
COMMUNITY SUPERVISION FOR LIFE CONVERTED TO
PAROLE SUPERVISION FOR LIFE.
The state argues defendant waived his right to appeal
constitutional ex post facto issues because he did not reserve his
right to appeal pursuant to Rule 3:9-3(f). We choose not to apply
that rule because "[s]trict adherence to [its] requirements . . .
'would result in an injustice.'" State v. Gonzalez, 254 N.J.
Super. 300, 304 (App. Div. 1992) (quoting R. 1:1-2) (considering
the defendant's unreserved argument challenging the
constitutionality of N.J.S.A. 2C:35-12).
We have considered the arguments in light of State v. Perez,
220 N.J. 423 (2015) and State v. F.W., 443 N.J. Super. 476 (App.
Div.), certif. denied, 227 N.J. 150 (2016), and reverse for the
reasons expressed in our related published opinion in State v.
Hester, __ N.J. Super. __ (App. Div. 2017).
Reversed.
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