Q: Do you get more time if put for a post conviction relief?

A: see http://www.judiciary.state.nj.us/rules/ and

Post conviction granted. State v. Colon, ____ N.J. Super. ____ (App. Div. 2005).

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6531-02T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ORLANDO COLON,

Defendant-Appellant.

_________________________________________________

Submitted October 27, 2004 - Decided January 11, 2005

Before Judges Wefing, Payne and C.S. Fisher.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, 01-09-1080.

2

Yvonne Smith Segars, Public Defender, attorney for

appellant (Michael Confusione, Designated Counsel, of

counsel and on the brief).

Peter C. Harvey, Attorney General, attorney

for respondent (Debra A. Owens, Deputy Attorney General,

of counsel and on

the brief).

The opinion of the court was delivered by

PAYNE, J.A.D.

Defendant Orlando Colon appeals on constitutional, statutory and equitable double

jeopardy grounds from his convictions, following the entry of conditional pleas of guilty,

on charges of second-degree eluding, N.J.S.A. 2C:29-2b, second-degree aggravated

assault while eluding, N.J.S.A. 2C:12-1b(6), and third-degree theft by unlawful taking of

an automobile, N.J.S.A. 2C:20-3. Additionally, he appeals from concurrent sentences

imposed on both the eluding and aggravated assault convictions of seven years with

three and one-half years of parole ineligibility, claiming that those sentences were

excessive.

We find no legal or equitable bar to defendant's convictions. However, we find

the sentence imposed on defendant's conviction for second-degree aggravated assault

while eluding, N.J.S.A. 2C:12-1b(6), to have been illegal, since neither an eighty-five

percent period of parole ineligibility nor a three-year period of parole supervision was

imposed as required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Because a legal sentence would require defendant to spend a greater period of time in

custody than he is presently sentenced to serve, we remand the matter to permit

defendant to seek to renegotiate or to withdraw his plea, or for resentencing.

I.

3

On July 30, 2001, defendant stole a Toyota Corolla that he found with the motor

running and the keys in the ignition. Following a report of the theft, he was spotted by

the police driving the car, was ordered to stop, failed to do so, and instead eluded the

police officers who followed him. Defendant struck a bicyclist in the course of his

ensuing flight, causing an occipital skull fracture. Following his arrest, defendant

admitted to stealing a Shure transmitter and wireless microphone valued at $1,800,

which were found in the trunk of the car.

Two narrative reports of the incident, prepared by Sergeant Steven Verdi, stated

as follows:

Observed a silver Toyota Corolla traveling north on King St.

matching a description of a stolen car which was being

tracked by a representative of Lojack . . . . Vehicle was

being operated by one male with no other occupants.

Overhead lights and siren were activated in an attempt to

pull vehicle over at which time vehicle went around other

vehicles and continued, increasing speed in an apparent

attempt to elude this officer. Suspect turned left off of King

St. to proceed west onto Smith St. . . . As this officer turned

onto Smith St., it was observed that there was a large

amount of pedestrian and vehicular traffic further down

Smith St. and the pursuit was immediately terminated and

radioed in as such. . . .

Suspect continued west bound on Smith St. driving

recklessly weaving in and out of traffic. At this time,

overhead lights and siren were shut off and pursuit was

completely terminated. However this officer continued to

follow in the direction of suspect in an attempt to observe his

direction of travel. ....