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State v. Lee

Decided: August 10, 1989.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FRANK A. LEE, DEFENDANT-APPELLANT



On appeal from the Superior Court, Law Division, Bergen County.

Dreier and Stern. The opinion of the court was delivered by Stern, J.A.D.

Stern

This sentence appeal is again before this court by virtue of the Supreme Court's remand for reconsideration "in light of an apparent confusion in the record in respect of this defendant's background and that of his co-defendant." 117 N.J. 38 (April 19, 1989). Defendant argues that his sentence is excessive primarily because it is harsher than that imposed on a co-defendant for the same crimes.

Defendant and Daniel Brown were jointly indicted for two burglaries, N.J.S.A. 2C:18-2, embodied in Bergen County indictments S-708-86 and S-1010-86.*fn1 Brown was also indicted in S-1010-86 with theft over $500.00, N.J.S.A. 2C:20-3, and criminal mischief, N.J.S.A. 2C:17-3. He was also charged with possession of stolen property, N.J.S.A. 2C:20-7 (accusation 1253-86) and with possession and possession with intent to

distribute C.D.S., N.J.S.A. 24:21-19(a)(1), 24:21-20(a)(1), and resisting arrest, N.J.S.A. 2C:29-2a(1) (indictment S-579-86).

In addition to the burglary offenses, defendant was charged in indictment S-1010-86 with theft, N.J.S.A. 2C:20-3, criminal mischief, N.J.S.A. 2C:17-3, and aggravated assault, N.J.S.A. 2C:12-1b(5). In other words, in addition to the charges returned against Brown on that indictment, defendant was charged with an aggravated assault.

On September 22, 1986 Brown pled guilty to the burglaries embodied in indictments S-708-86 and S-1010-86, the receiving charge embodied in the accusation, and the possession with intent to distribute C.D.S. and resisting arrest charges embodied in S-579-86. In exchange for the plea the State agreed to recommend dismissal of the other charges and two pending disorderly persons offenses and to recommend a maximum 10 year sentence. On October 31, 1986 Brown was sentenced to 10 years in the custody of the Commissioner of Corrections with 5 years before parole eligibility on the C.D.S. conviction. He received concurrent sentences on the other convictions, including concurrent 5 year sentences with 2 1/2 years before parole eligibility on the burglaries.*fn2

On May 4, 1987 defendant pled guilty to the burglary and aggravated assault charges embodied in indictment S-1010-86*fn3

and to the burglary embodied in S-708-86. In exchange, the State recommended dismissal of the other charges and a pending disorderly complaint, and agreed to waive an extended term application and to recommend a maximum 10 year sentence. On June 12, 1987 defendant was sentenced to concurrent 5 year sentences, with 2 1/2 years before parole eligibility, on the crimes embodied in indictment S-1010-86 and to a consecutive similar sentence for the burglary embodied in indictment S-708-86. Thus defendant received an aggregate 10 year sentence with 5 years parole ineligibility on the burglaries, while his co-defendant received but a 5 year sentence with 2 1/2 years parole ineligibility for the same offenses.

We agree with defendant's primary assertion that the Code of Criminal Justice endeavored to limit judicial discretion, promote uniformity and reduce undue disparity in sentencing. See N.J.S.A. 2C:1-2b(4), (6). We further agree that our Judiciary is committed to the concept of uniformity and reduction of undue disparity. See, e.g., State v. Pillot, 115 N.J. 558 (1989); State v. Yarbough, 100 N.J. 627, 635, 647 (1985), certif. denied, sub nom. Yarbough v. New Jersey, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986); State v. Hodge, 95 N.J. 369, 379-380 (1984); State v. Roth, 95 N.J. 334, 345-369 (1984); State v. Pillot recently discussed the issue in terms of multiple sentences involving the same defendant imposed in separate proceedings in different counties. The problem is potentially of even greater concern when two defendants with similar records are charged with similar offenses or two co-defendants with similar backgrounds are ...


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