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State v. Bailey

April 6, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
NATHAN BAILEY, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. S-524-88-01.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 4, 2009

Before Judges Stern and Lyons.

This is an appeal from the denial of defendant Nathan Bailey's fourth petition for post-conviction relief (PCR). We affirm.

In 1989, defendant was tried by a jury and found guilty of aggravated assault, armed robbery, and possession of a weapon for an unlawful purpose. The State moved for an extended term, and the trial court, after granting the motion, imposed an aggregate prison term of fifty years with an eighteen-year period of parole ineligibility and the appropriate VCCB penalties. Defendant appealed and we affirmed. State v. Bailey, No. A-5550-88T4 (App. Div. Jan. 27, 1992), certif. denied, 130 N.J. 12 (1992). In 1992, he filed his first petition for PCR. Ultimately, it was denied, and we again affirmed. State v. Bailey, No. A-7128-94T4 (App. Div. May 1, 1997). In 2001, he filed his second PCR petition. It was denied and we affirmed. State v. Bailey, No. A-5974-00T1 (App. Div. Sept. 19, 2002). On November 25, 2003, defendant filed his third petition for PCR. It was denied and we affirmed. State v. Bailey, No. A-2849-03T1 (App. Div. Jan. 31, 2005). On August 8, 2006, defendant filed his fourth PCR petition. It was denied on September 26, 2006, and this appeal ensued.

On appeal, defendant offers these arguments:

POINT I

THE TRIAL COURT'S CONSIDERATION OF AN [SIC] INAPPROPRIATE AGGRAVATING FACTORS VIOLATE THE SENTENCING GUIDELINES AND THUS IS GROUNDS FOR VACATING THE SENTENCE.

POINT II

THE SENTENCING JUDGE'S FINDING OF PREPONDERANCE OF EVIDENCE OF AGGRAVATING FACTORS OUTWEIGH THE MITIGATING FACTORS VIOLATED DEFENDANT'S SIXTH AND FOURTEENTH AMENDMENT RIGHTS.

POINT III

DEFENDANT IS ASKING THE COURT TO CONSIDER HIS POST-MITIGATING FACTORS.

In addition to the points raised by defendant above, he argues that he received an illegal five-year sentence, with a five-year period of parole ineligibility on count one, aggravated assault by recklessly causing bodily injury to another with a deadly weapon, contrary to N.J.S.A. 2C:12- 1(b)(3). Defendant's claim is without merit. We note that on direct appeal, and in the prior PCR applications, we found that the trial judge appropriately sentenced defendant to an extended ...


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