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State v. Conn

May 16, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BARRY G. CONN, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BARRY G. CONN, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Salem County, 02-11-0518-I and Atlantic County, 02-11-2332-I and 02-10-2192.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 1, 2006

Before Judges Collester and Sabatino.

In these back-to-back appeals defendant argues that his sentences were excessive and violative of his due process rights under State v. Natale, 184 N.J. 458 (2005). In Atlantic County he entered a guilty plea on October 30, 2003, to count one of indictment number 02-11-2332 charging robbery in the first-degree, contrary to N.J.S.A. 2C:15-1 and to count one of indictment number 02-10-2192 charging the same offense. The plea agreement stipulated that the State would recommend a sentence of seventeen years with an eighty-five-percent parole disqualifier pursuant to the No Early Release Act (NERA), to be served concurrently with any sentence defendant received on Salem County indictment number 02-11-0518, as well as any sentence imposed on charges pending in the State of Michigan. A plea agreement was entered with respect to the Salem County indictment with defendant entering a guilty plea to count one, robbery in the first degree, and stipulating the State would recommend a sentence of sixteen years with the NERA parole disqualifier to be served concurrently with the Atlantic County sentence.

All of the offenses for which defendant was sentenced involved robberies of commercial establishments. In Atlantic County on September 2, 2002, defendant entered a Radio Shack in Hamilton Township and demanded money after pointing what he said was a "real looking" plastic gun at a female employee. About two weeks later defendant entered a video store in Hammonton, Atlantic County, and committed another robbery using what appeared to a "real gun." The Salem County convictions involved a robbery on September 16, 2002, at a Holiday Inn in Carneys Point Township, again with what defendant said was a plastic imitation firearm.

On November 21, 2003, in Atlantic County, defendant was sentenced in accordance with the negotiated agreement to a prison term of seventeen years with an eighty-five-percent parole disqualifier and credit of 431 days jail time. On January 12, 2004, in Salem County, he received a prison term of sixteen years with an eighty-five-percent parole disqualifier under NERA concurrent with the Atlantic County sentences and any Michigan sentences.

Defendant appeals the sentences on the following grounds:

POINT I -- DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE AS THE SENTENCING COURT FAILED TO CORRECTLY APPLY AND WEIGH ALL RELEVANT FACTORS.

POINT II -- BECAUSE DEFENDANT'S SENTENCE WAS ABOVE THE PRESUMPTIVE SENTENCE, THE MATTER MUST BE REMANDED TO PERMIT RE-SENTENCING PURSUANT TO STATE V. NATALE, 184 N.J. 458 (2005).

POINT III -- BECAUSE DEFENDANT POSSESSED A PLASTIC GUN DURING THE COMMISSION OF THE ROBBERIES, HE WAS NOT SUBJECT TO THE PROVISIONS OF THE GRAVES ACT.

POINT IV -- THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO AWARD 431 DAYS OF JAIL CREDIT TO THE DEFENDANT.

Additionally defendant has submitted a pro se supplemental brief making the following arguments:

POINT I -- DEFENDANT WAS SUBJECTED TO AN ILLEGAL SENTENCE AS THE STATUTORY MAXIMUM INCREASED BY TWO AND A HALF YEARS IN VIOLATION OF THE UNITED STATES CONSTITUTION'S SIXTH AMENDMENT, NEW JERSEY'S N.J.S.A. 2C SENTENCING CODE MANDATES MORE THAN ONE SENTENCE, ONE WHICH SUBJECTED DEFENDANT TO GREATER CONSEQUENCES, AND ...


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