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State v. Atiba

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 27, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
OMARI ATIBA, A/K/A LAMONT SMITH, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Essex County, No. 86-03-887-I.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 23, 2007

Before Judges Wefing and Parker.

Defendant appeals from a trial court order denying his petition for post-conviction relief. After reviewing the record in light of the contentions advanced on appeal, we affirm.

A jury convicted defendant of murder, N.J.S.A. 2C:11-3a(1), (2); possession of a weapon for an unlawful use, N.J.S.A. 2C:39- 4a; and unlawful possession of a handgun, N.J.S.A. 2C:39-5b. Defendant thereafter pled guilty under a separate indictment to drug-related charges. Defendant was sentenced on the same day on both sets of charges. He was sentenced to thirty years in prison for murder, with a thirty-year period of parole ineligibility, and a concurrent four-year term for unlawful possession of a handgun. The conviction for possession of a weapon for an unlawful purpose merged into defendant's conviction for murder. He was also sentenced to three years in prison for possession of a controlled dangerous substance, to be served concurrently with the sentence for murder.

Defendant appealed, and this court affirmed. State v. Lamont Smith, No. A-2156-87T4 (App. Div. Dec. 6, 1989).*fn1

Defendant filed a timely petition for post-conviction relief, which the trial court denied on March 26, 1993. Defendant again appealed to this court, and we affirmed the trial court's order. State v. Lamont Smith, No. A-7125-94T4 (App. Div. March 10, 1997). Defendant filed a second petition for post-conviction relief that the trial court again denied. The trial court's order denying that second petition is the subject of this appeal.

Defendant makes one argument on appeal--that the trial court erred in denying his petition. The substance of defendant's argument is that he is entitled to have his thirty-year period of parole ineligibility reduced by his commutation and work credits. The law, however, is clearly to the contrary; commutation and work credits may not be applied to reduce a judicially-imposed minimum term of incarceration. State v. Pennington, 154 N.J. 344, 359 (1998); Merola v. Dep't of Corrections, 285 N.J. Super. 501, 509-12 (App. Div. 1995); Karatz v. Scheidemantel, 226 N.J. Super. 468, 472 (App. Div. 1988).

The order under review is affirmed.


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