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State v. Leon

June 30, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
OVICK LEON, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. 04-11-1462.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 3, 2007

Before Judges A. A. Rodríguez and C. L. Miniman.

Defendant Ovick Leon was charged by a Morris County Grand Jury with eighteen offenses, which occurred in Morris, Essex and Union Counties. Defendant moved for severance and transfer of venue for the offenses that occurred outside Morris County. Judge Catherine M. Langlois denied this motion. Defendant then entered a negotiated plea of guilty to: second-degree burglary of a residence in Chatham Borough (Morris County), N.J.S.A. 2C:18-2a(1) (count two); second-degree eluding of police officers in the municipalities of Springfield (Union County) and Millburn (Essex County), N.J.S.A. 2C:29-2b (count six); third-degree receiving stolen property (a 1996 Nissan pick-up truck) in the municipalities of Chatham, Springfield and Montclair (Essex County), N.J.S.A. 2C:20-7a (count fifteen); and third-degree burglary of a residence in Montclair, N.J.S.A. 2C:18-2a(1) (count seventeen). In exchange, the State agreed to dismiss the remaining charges and recommend the following sentence: an eight-year term on count two, subject to a NERA*fn1 parole disqualifier; a concurrent seven-year term on count six; a consecutive four-year term on count fifteen; and four years for count seventeen, to run concurrently with count fifteen. Thus, the aggregate custodial sentence was twelve years.

Defendant's plea was conditional upon his right to appeal the denial of his motion for severance and change of venue. Judge N. Peter Conforti imposed the recommended sentence to run concurrently with a sentence that Leon was already serving. Defendant moved for a reduction or change in his sentence pursuant to R. 3:21-10. Judge Conforti denied the motion.

On appeal, defendant contends:

THE MOTION COURT ERRONEOUSLY DETERMINED THAT VENUE WAS PROPER IN MORRIS COUNTY FOR COUNTS SIX THROUGH EIGHTEEN OF THE INDICTMENT, AND THEREFORE THE DEFENDANT MUST BE AFFORDED AN OPPORTUNITY TO WITHDRAW HIS CONDITIONAL GUILTY PLEA.

A. The Motion Court Erroneously Determined That Venue Was Proper In Morris County For Offenses That Allegedly Occurred In Essex and Union Counties.

B. Receiving Stolen Property Within The State Is Not A Continuing Offense[.] Therefore[,] Venue Is Proper In The County In Which Possession Or Control Of The Property Was Acquired.

C. When A Pretrial Motion Is Wrongly Decided, The Defendant Must Be Afforded An Opportunity To Withdraw His Conditional Guilty Plea.

THE CONSECUTIVE SENTENCE IMPOSED BY THE COURT IS EXCESSIVE UNDER THE FACTS AND CIRCUMSTANCES OF THIS CASE.

We affirm.

This is a summary of the facts alleged by the State. At 12:45 p.m. on May 28, 2004, Morris County Police Officer George M. Holmes responded to Scotland Road to investigate the hijacking of a 1996 red Nissan pick-up truck. Holmes spoke with the owner of the pick-up truck, who stated ...


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