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State v. Swint

November 10, 2003

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ALMEEN SWINT, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-11-3141.

Before Judges Pressler, Ciancia and Parker.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 15, 2003

Following a trial by jury, defendant Almeen Swint was found guilty of two counts of first-degree robbery (counts one and five), N.J.S.A. 2C:15-1; two counts of attempted murder (counts two and six), N.J.S.A. 2C:11-3; N.J.S.A. 2C:5-1; N.J.S.A. 2C:2-6; two counts of second-degree aggravated assault (counts three and seven), N.J.S.A. 2C:12-1b(1); one count of third-degree unlawful possession of a weapon (count eight), N.J.S.A. 2C:39-5b; and one count of second-degree possession of a weapon for an unlawful purpose (count nine), N.J.S.A. 2C:39-4a.

Defendant's sentence was sufficiently complex that we prefer to set it out verbatim:

It is therefore, on 4/30/02 ORDERED and ADJUDGED that the defendant is sentenced as follows:

COUNT 1

Sentenced to be committed to the custody of the Comm. Of The Dept. Of Corrections for a term of Fifteen (15) Years, must serve 85% before eligible for parole with Five (5) years mandatory parole supervision upon release, 50% parole ineligibility pursuant to Graves Act, subsumed therein; VCCB-$100., SNSF-$75., LEOTEF-$30. The sentence imposed on this Count is to run consecutive to the sentence imposed on Counts 5, 6 and 8 of this Indictment and is to run concurrent to Count 2, of this Indictment.

COUNT 2

Sentenced to be committed to the custody of the Comm. Of The Dept. Of Corrections for a term of Fifteen (15) Years, must serve 85% before eligible for parole with Five (5) years mandatory parole supervision upon release, 50% parole ineligibility pursuant to Graves Act, subsumed therein; VCCB-$100., SNSF-$75., The sentence imposed on this Count is to run consecutive to the sentence imposed on Counts 5, 6 and 8 of this Indictment and is to run concurrent to Count 1 of this Indictment.

COUNT 3

Merges with Count 2 for purposes of sentence and is DISMISSED.

COUNT 4

DISMISSED - Defendant found Not Guilty of this Count at trial.

COUNT 5

Sentenced to be committed to the custody of the Comm. Of The Dept. Of Corrections for a term of Fifteen (15) Years, must serve 85% before eligible for parole with Five (5) years mandatory parole supervision upon release, 50% parole ineligibility pursuant to Graves Act, subsumed therein; VCCB-$100., SNSF-$75. The sentence imposed on this Count is to run consecutive to the sentence imposed on Counts 1 and 2 of this Indictment and is to run concurrent to Counts 6 and 8 of this Indictment.

COUNT 6

Sentenced to be committed to the custody of the Comm. Of The Dept. Of Corrections for a term of Fifteen (15) Years, must serve 85% before eligible for parole with Five (5) years mandatory parole supervision upon release, 50% parole ineligibility pursuant to Graves Act, subsumed therein; VCCB-$100., SNSF-$75. The sentence imposed on this Count is to run consecutive to the sentence imposed on Counts 1 and 2 of this Indictment and is to run concurrent to Counts 5 and 8 of this Indictment.

COUNT 7

Merges with Count 6 for purposes of sentence and is DISMISSED.

COUNT 8

Sentenced to be committed to the custody of the Comm. Of The Dept. Of Corrections for a term of Five (5) years; VCCB-$50., SNSF-$75. The sentence imposed on this Count is to run consecutive to the sentence imposed on Counts 1 and 2 of this Indictment and is to run concurrent to Counts 5 and 6. Count 9 Merges with Counts 1 and 2 for purposes of sentence and is DISMISSED.

At sentencing the judge did not state the aggregate sentence, but the judgment of conviction shows the"total custodial term" as"30 years w/85%." Defendant's notice of appeal says the aggregate is"45 years with an 85% parole disqualifier." In our view the judgment of conviction gives the correct aggregate sentence. On appeal defendant contends:

POINT ONE

THE TRIAL COURT'S REFUSAL TO PROVIDE THE MODEL JURY CHARGE ON POLICE PHOTOS REQUIRES THE REVERSAL ...


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