facing a family member. These facts may all be considered in sentencing.
In the present case, the sentence imposed was clearly within the range of the trial court's discretion. N.J.S.A. 2C:44-1(a) and (b) requires the sentencing judge to consider both the aggravating and mitigating criteria when setting a sentence. N.J.S.A. 2C:44-1(d) establishes a presumption of imprisonment for those convicted of first and second degree crimes. Judge Huber clearly considered each of these factors before imposing sentence.
The court noted that the defendant was a first offender. The court looked at the totality of the circumstances, including the petitioner's background and family life, the nature and circumstances of the offenses and the information contained in the presentence report.
Upon an appraisal of all the circumstances, Judge Huber found that the aggravating factors clearly outweighed the mitigating factors and for this reason felt it necessary to impose a custodial sentence. The nature and circumstances of the offense, N.J.S.A. 2C:44-1(a)(1); the risk of petitioner's committing another offense, N.J.S.A. 2C:44-1(a)(3); the fact that a lesser sentence would deprecate the seriousness of the offense, N.J.S.A. 2C:44-1(a)(4); and the likelihood that the petitioner was involved in organized criminal activity, N.J.S.A. 2C:44-1(a)(9) were all found to outweigh the mitigating factors. For this reason, the court felt the conviction required the imposition of the presumptive custodial term, N.J.S.A. 2C:44-1(d), for the petitioner's second degree offense.
For all of the above reasons, Judge Huber was convinced a suspended sentence would not be appropriate in the case of the petitioner. All of these considerations made by Judge Huber were clearly within the discretion of the trial court judge. As such, the sentence imposed on Mr. Grecco was within the statutory bounds and not manifestly excessive either in itself or compared to the sentence imposed on the other co-defendants.
The petitioner claims that his sentence was excessive in comparison with the sentences received by the others involved in the same criminal scheme. The fact that the others were acquitted can have no bearing upon the petitioner's claim that his sentence was manifestly excessive. Mr. Barcellona's sentence was the product of a plea agreement with the State and Mr. Conway was convicted of a different substantive count. Thus, the sentence imposed on the other co-conspirators cannot be compared to the petitioner's sentence nor can they undermine the fairness of the sentence received by the petitioner. See State v. Hicks, 54 N.J. 390, 255 A.2d 264 (1969).
The petitioner's sentence was a proper exercise of the trial court's discretion and cannot be considered excessive. The petitioner, therefore, has failed to state a constitutional claim upon which relief can be granted and federal habeas corpus relief is unwarranted.
Petitioner's application for writ of habeas corpus is denied. Petitioner has failed to demonstrate that he is in custody in violation of 28 U.S.C. § 2254.
For the reasons stated in this court's opinion filed even date herewith,
It is on this 26th day of May 1987,
ORDERED that within petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 be and hereby is dismissed. This court certifies there is no probable cause for appeal from this order. No costs.