                        NOT FOR PUBLICATION WITHOUT THE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

                                 2                         A-1078-15T1
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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