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State v. Pennington

May 22, 1997

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JAMES PENNINGTON, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.

Approved for Publication May 26, 1997.

Before Judges Pressler, Humphreys and Wecker. The opinion of the court was delivered by Wecker, J.s.c., temporarily assigned. Humphreys, J.A.D., Dissenting.

The opinion of the court was delivered by: Wecker

The opinion of the court was delivered by

WECKER, J.S.C., temporarily assigned

After a consolidated jury trial, defendant was convicted of multiple crimes arising out of four separate incidents charged in two indictments. *fn1 On Indictment 224-01-93, defendant was convicted of two counts of second-degree burglary, N.J.S.A. 2C:18-2, for which he was sentenced to two consecutive ten-year prison terms, each with a five-year period of parole ineligibility. *fn2 On Indictment 432-03-94 defendant was convicted of two counts of first-degree kidnapping, N.J.S.A. 2C:13-1(b), and received two extended term life sentences on those convictions, each with a twenty-five year period of parole ineligibility. He was also convicted of two counts of first-degree armed robbery, N.J.S.A. 2C:15-1, for which he was sentenced to two twenty-year terms. Defendant was also convicted of second-degree burglary for which he was sentenced to an extended term of 20 years. Sentences on all counts of Indictment 432 were imposed concurrent to each other, but consecutive to the aggregate twenty-year term on Indictment 224. *fn3 Defendant appeals the convictions and the aggregate sentence, a base term of life plus twenty years with a thirty-five year parole disqualifier. On appeal, defendant makes the following arguments:

POINT I

THE ADMISSION OF TESTIMONY CONCERNING IMPERMISSIBLY SUGGESTIVE IDENTIFICATION PROCEDURES, WHEREBY THE VICTIM REVIEWED PHOTOGRAPHS ONLY OF DEFENDANT, VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. V, VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.

POINT II

IN A CASE WHERE CHARGES INVOLVING FOUR SEPARATE INCIDENTS HAD BEEN JOINED FOR TRIAL, THE JUDGE'S FAILURE TO INSTRUCT THE JURORS TO CONSIDER THE EVIDENCE OF EACH CHARGE SEPARATELY DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI8, XIV; N.J. CONST. (1947) ART. 1, PARS. 1, 9, 10. (NOT RAISED BELOW).

POINT III

THE STATE'S PROCUREMENT OF A SUPERSEDING INDICTMENT, WHICH CONTAINED FAR MORE SERIOUS CHARGES AND WAS RETURNED IMMEDIATELY BEFORE THE SCHEDULED COMMENCEMENT OF TRIAL ON THE ORIGINAL CHARGES, REPRESENTED IMPROPER RETALIATION FOR DEFENDANT'S REFUSAL TO PLEAD GUILTY, IN VIOLATION OF HIS RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.

POINT IV

SINCE THE CONFINEMENT OF THE VICTIMS WAS MERELY INCIDENTAL TO THE UNDERLYING CRIME OF ROBBERY, A NECESSARY ELEMENT OF KIDNAPPING WAS NOT ESTABLISHED AND DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.

POINT V

DEFENDANT'S EXTENDED TERM SENTENCE OF LIFE IMPRISONMENT WITH A 25 YEAR MANDATORY MINIMUM PLUS TWO CONSECUTIVE SENTENCES TOTALLING 20 YEARS WITH A 10-YEAR MANDATORY MINIMUM WAS MANIFESTLY EXCESSIVE.

We have reviewed the defendant's contentions in light of the record, the applicable law and the arguments of counsel and conclude that the contentions raised in Points I through IV are without merit and do not warrant extended Discussion in a written opinion. R. 2:11-3(e)(2). We therefore affirm the convictions. *fn4 However, we conclude that errors in the sentence, an inadequate statement of reasons, and the excessive aggregate sentence require that we vacate defendant's sentence and remand the entire matter for resentencing.

The convictions arose out of four incidents that occurred on three days at two motels. The evidence permitted the jury to find the following facts. In the early morning hours of November 22, 1992, defendant burglarized the room of an employee at the Residence Inn in South Brunswick, armed with a knife with which he threatened the employee. On the same morning, defendant burglarized the room shared by two businessmen at the Ramada Inn in South Brunswick, robbed each of them at knife-point and tied them up to facilitate his escape. On December 8, defendant was found in possession of property stolen from a guest at the Residence Inn. In the last incident, on December 15, defendant burglarized another guest's room at the Residence Inn.

We are mindful of the applicable standard of review. See State v. Roth, 95 N.J. 334, 364-65, 471 A.2d 370 (1984). The Supreme Court has repeatedly reiterated the Roth standard. See, e.g., State v. Roach, 146 N.J. 208, 680 A.2d 634 (1996) (remanding for ...


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