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State v. Stewart

May 22, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHN R. STEWART, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 04-07-00782.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 7, 2008

Before Judges Lisa and Simonelli.

Defendant was the subject of a forty-eight-count indictment.*fn1 Most counts charged third-degree burglaries, N.J.S.A. 2C:18-2, and related third-degree thefts, N.J.S.A. 2C:20-3. After dismissal of various counts, thirty counts were submitted to the jury,*fn2 and defendant was found guilty of twenty-five counts, of which twelve were burglaries and twelve were the related thefts. Defendant was sentenced to an aggregate term of twelve years imprisonment with a six-year parole disqualifier. He was also ordered to pay restitution and mandatory monetary assessments.

On appeal, defendant does not challenge his convictions on nineteen counts. He argues that the trial judge erred in denying his motion for acquittal at the close of the evidence and before the case was submitted to the jury with respect to burglaries and thefts at three locations, as embodied in counts five and six, nine and ten, and seventeen and eighteen. Defendant also argues that his sentence is excessive. More specifically, defendant argues:

I. THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS ON COUNTS FIVE & SIX.

II. THE COURT ERRED IN DENYING MOTIONS FOR ACQUITTAL ON COUNTS NINE & TEN.

III. THE COURT ERRED IN DENYING MOTIONS FOR ACQUITTAL ON COUNTS [SEVENTEEN & EIGHTEEN].

IV. A REVIEW OF THE JUDGE TRIAL COURTS SENTENCING REASONS SHOW ERROR.

a. The court erred in not finding Mitigating Factors b(1)-the defendant's conduct neither caused nor threatened serious harm and b(2)-the defendant did not contemplate that his conduct would cause serious harm.

b. In finding that the defendant was a "modern day Fagan" who employed others in criminal activities the court erred in considering matter that are not enumerated in N.J.S.A. 2C:44-1a.

c. The court erred in its qualitative assessment of aggravating factors a(3), a(6) and a(9).

d. The existence of aggravating factor a(11) in determining the length of sentence for the imposition of a ...


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