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State v. Oliver

December 18, 1998

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GREGORY OLIVER, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, whose opinion is reported at 298 N.J. Super. 538 (Law Div. 1996).

Before Judges Muir, Jr., Keefe and Eichen.

The opinion of the court was delivered by: Eichen, J.A.D.

Submitted November 10, 1998

A jury found defendant guilty of first degree robbery, N.J.S.A. 2C:15-1a(1) and/or (2) and N.J.S.A. 2C:2-6 (count two); second degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count three); and third degree aggravated assault, N.J.S.A. 2C:12-1b(2) (count four). He was acquitted of attempted murder, N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-3 and N.J.S.A. 2C:2-6 (count one). The court sentenced defendant to life imprisonment without eligibility for parole for first degree robbery, pursuant to N.J.S.A. 2C:43-7.1a (L. 1995, c. 126), entitled the "Persistent Offenders Accountability Act." *fn1 After merging the conviction on count four into count three, the Judge imposed a concurrent ten-year term with five years of parole ineligibility on count three.

On appeal, defendant makes the following arguments:

POINT I

AN INADEQUATE JURY INSTRUCTION ON ACCOMPLICE LIABILITY, WHICH FAILED TO EXPLAIN THAT DEFENDANT HAD TO SHARE THE PURPOSE TO COMMIT AN ARMED ROBBERY RATHER THAN A ROBBERY, DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not raised below).

POINT II

IMPROPER SUMMATION COMMENTS, DESIGNED TO INVOKE SYMPATHY FOR A VIRTUOUS VICTIM, DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not raised below).

POINT III

THE STATE FAILED TO ESTABLISH THAT DEFENDANT WAS ELIGIBLE FOR AN EXTENDED TERM OF LIFE IMPRISONMENT WITHOUT PAROLE.

POINT IV

THE MANDATORY EXTENDED TERM SENTENCE OF LIFE WITHOUT PAROLE IMPOSED UNDER NEW JERSEY'S "THREE STRIKES" LAW, N.J.S.A. 2C:43-7.1a, CONSTITUTED CRUEL AND UNUSUAL PUNISHMENT. U.S. CONST. ...


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