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State v. Lopez

July 20, 2007

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
RAUL D. LOPEZ, DEFENDANT-RESPONDENT/CROSS-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Middlesex County, 03-03-0366.

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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted: December 12, 2006

Before Judges Kestin, Payne and Graves.

This criminal appeal comes to us in an unusual procedural posture. On May 4, 2005, the State filed a notice of appeal from the trial court's denial of its motion for reconsideration of the assertedly illegal sentence. On May 8, 2005, defendant filed a cross-appeal from the convictions and the assertedly excessive sentence. Reverting to more typical practice, defendant's brief was filed first, on March 31, 2006, in the form of an appellant's brief; and the State's brief was filed on August 8, 2006, in the form of a respondent's brief.

In a superseding indictment, defendant had been charged with first-degree kidnapping, N.J.S.A. 2C:13-1b; aggravated sexual assault, a first-degree crime, N.J.S.A. 2C:14-2a(3); sexual assault, a second-degree crime, N.J.S.A. 2C:14-2c; and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. The jury convicted defendant of kidnapping and endangering; it acquitted defendant of aggravated sexual assault and sexual assault, but convicted him of third-degree aggravated criminal sexual contact, a lesser included crime.

Invoking N.J.S.A. 2C:44-1f(2) as authority to sentence defendant to a term one degree lower than the term of the crime for which he was convicted, the trial court, with a detailed recitation of reasons, sentenced defendant, on the kidnapping conviction, to a prison term of seven years subject to N.J.S.A. 2C:43-7.2, i.e., eighty-five percent of the term without parole eligibility and a five-year period of post-release parole supervision. On the aggravated criminal sexual contact conviction, the court imposed a concurrent three-year sentence. The endangering conviction was held to have merged into the other convictions. The judgment of conviction also provided that defendant was "sentenced to community supervision for life." See N.J.S.A. 2C:7-1 to -19.

The State invoked the ten-day-stay provision of Rule 3:21-4(i), see Pressler, Current N.J. Court Rules, comment 9 on R. 3:21-4 and comment 8.2 on R. 2:3-1 (2007), and appeals from the trial court's denial of its timely motion for reconsideration of the sentence. On its appeal, the State maintains that

DEFENDANT'S SENTENCE IS ILLEGAL AND HE MUST BE RESENTENCED TO THE MANDATORY 25-YEAR TERM REQUIRED BY HIS CONVICTION UNDER N.J.S.A. 2C:13-1c(2).

The State points out correlatively that, because aggravated criminal sexual contact with a person under the age of sixteen, N.J.S.A. 2C:14-3a, is a predicate crime for the imposition of a mandatory minimum sentence under N.J.S.A. 2C:13-1c(2)(a), the conviction in this matter for aggravated sexual contact should have been merged into the kidnapping conviction, as mandated by the last paragraph of N.J.S.A. 2C:13-1c(2).

Defendant, on his cross-appeal, raises the following issues:

POINT I

THE STATEMENTS MADE BY THE DEFENDANT TO LAW ENFORCEMENT OFFICERS SHOULD HAVE BEEN SUPPRESSED BECAUSE A). THEY WERE THE FRUIT OF AN UNLAWFUL SEARCH; B). THEY WERE NOT MADE KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY; AND C). THE POLICE FAILED TO SHOW THE DEFENDANT THE WARRANT ...


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