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State v. Fitton

June 20, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MICHAEL FITTON, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No. 06-05-00196.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 21, 2008

Before Judges Cuff, Lihotz and King.

Defendant Michael Fitton appeals his conviction, following a jury trial, for second-degree burglary, N.J.S.A. 2C:18-2 (count one); the petty disorderly offense of harassment, N.J.S.A. 2C:33-4, as a lesser included offense of the charged offense (count two); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count three); fourth-degree unlawful possession of a weapon N.J.S.A. 2C:39-5(d) (count four); and the lesser included offense of fourth-degree attempted aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count five). Count six of the indictment, which charged third-degree possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-10(a)(1) was severed prior to trial and dismissed following conviction.

Fitton also argues the sentence imposed was excessive. The trial judge sentenced defendant as follows: on count one, six years incarceration subject to an eighty-five percent parole ineligibility period pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(d)(12); on count two, thirty days in state prison to run concurrent to the sentence on count one; on counts three (merged with count four) and five, four years incarceration on each count to run concurrent to the sentences for counts one and two. The applicable fines and penalties were imposed.

On appeal, Fitton suggests the incident resulting in the charges "was more farce than crime" and presents the following issues for our review:

Point I

The Court's Denial of an Adjournment Was Harmful Error Denying Defendant of His Right To a Fair Trial Under Both the United States Constitution Amendment VI and the State of New Jersey Constitution Article I, Paragraph 10.

Point II

The Court Committed Plain Error by Failing to Declare Sua Sponte a Mistrial Immediately Upon Defense Counsel's Admission of Guilt During the Opening Statement Which Deprived Defendant of a Fair Trial Under Both the United States Constitution Amendment VI and the New Jersey Constitution Article I, Paragraph 10 (not raised below R. 2:6-2).

Point III

The Court Committed Plain Error by Allowing the "Severance" Of Count 6 From The Indictment in Clear Violation of R. 3:25-1 Thereby Denying Defendant of a Fair Trial (Not Raised Below).

Point IV

The Prosecutor's Failure to Disclose the Plea Agreement And Allocution of the Co-Defendant Violated Defendant's Right to a Fair Trial Under United States Constitution Amendment VI And The New ...


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