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State v. Simms

March 6, 2009

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



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 01-03-0487.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 11, 2009

Before Judges Fisher and C.L. Miniman.

Following a trial, defendant was convicted of three counts of second-degree aggravated assault and one count of third-degree hindering the apprehension of another. As to the aggravated assault convictions, the jury made the additional finding that defendant had committed violent crimes as defined by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Judge Ira E. Kreizman sentenced defendant to concurrent ten-year prison terms on the aggravated assault convictions, subject to an 85% period of parole ineligibility, pursuant to NERA, and a three-year period of parole supervision upon release.

These convictions arose out of a shooting that occurred in Freehold on October 19, 2000. We briefly described this occurrence in an unpublished opinion that disposed of defendant's direct appeal:

At that time, a verbal dispute broke out at the Parrish home at 79 Throckmorton Street between two groups of men. One group consisted of defendant and Jamaal Sconiers; the other group consisted of Anthony Parrish, Timothy Parrish, Amin Suluki and Brandell (Marcus) Bailey. After the argument, defendant and Sconiers left the area but soon located defendant's brother Thomas in another area in Freehold. At that time, defendant asked Thomas Simms "if he had a gun on him," prompting the three to go to Thomas's rented room, and from there to another area of Freehold where they picked up John Simms, the uncle of defendant and Thomas. This group of four -- defendant, Thomas Simms, John Simms and Sconiers --then proceeded to the Parrish home. [State v. Michael Simms, No. A-5632-02T4 (App. Div. February 18, 2005) (slip op. at 2).]

We then described the events that followed, once the group that included defendant arrived at the Parrish home, by referring to our unpublished opinion in the appeal filed by Thomas Simms:

When they arrived, [Thomas Simms] alighted from the vehicle and engaged Anthony Parrish in an aggressive verbal argument; [defendant], John Simms and Sconiers also exited the vehicle. Anticipating a physical fist fight, Anthony instructed Amin to go inside the Parrish house and tell Timothy to come outside. When Timothy and Amin emerged from the house, Anthony took off his leather jacket and threw it to the ground.

[Thomas Simms] then took out a nine-millimeter pistol he had concealed on his person and shot Anthony behind his left ear. [Thomas Simms] then shot Bailey in the face, Timothy in the face, and Amin in the buttocks as he was attempting to run away.

None of the victims was armed, nor had they threatened anyone with a weapon. Anthony, Bailey and Timothy sustained severe and life-threatening injuries, but survived.

Amin sustained injuries that required abdominal surgery and removal of a portion of his intestines; he also survived. [Id. at 2-3 (quoting State v. Thomas Simms, No. A-1781-02T4 (App. Div. February 18, 2005).]

In his direct appeal, defendant argued that the Graves Act, N.J.S.A. 2C:43-6(c), should not have applied to his sentence and that the sentence was otherwise excessive; he did not argue his entitlement to be resentenced pursuant to the constitutional principles recognized in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004). We rejected all of defendant's arguments with regard to his convictions and his sentence, and affirmed.

Defendant's motion for reconsideration was denied on April 1, 2005. His petition for certification was denied by the Supreme Court of New Jersey ...


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