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State v. Ali

July 6, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ABDULLAH ALI, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-06-1857.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 3, 2009

Before Judges Parrillo and Messano.

Defendant Abdullah Ali appeals from the judgment of conviction and sentence imposed following a jury trial at which he was found guilty of three counts of the lesser-included offense of second-degree sexual assault, N.J.S.A. 2C:14-2; and the lesser-included offense of simple assault, N.J.S.A. 2C:12- 1(a). The judge granted the State's motion to impose a discretionary extended term of imprisonment, N.J.S.A. 2C:44-3(a), and sentenced defendant to three concurrent twenty-year terms on the sexual assaults, and a concurrent sentence of time served on the simple assault. An 85% period of parole ineligibility was mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Defendant raises the following points for our consideration:

POINT I

THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY BY INFERENTIALLY COMMENTING UPON THE DEFENDANT'S FIFTH AMENDMENT PRIVILEGE. (Not Raised Below)

POINT II

THE TRIAL COURT ERRED IN RULING THAT THE DEFENDANT'S PRIOR CONVICTIONS WERE ADMISSIBLE TO ATTACK CREDIBILITY.

POINT III

THE TRIAL COURT ABUSED ITS DISCRETION IN DECIDING TO IMPOSE A DISCRETIONARY EXTENDED TERM, WARRANTING A REMAND TO IMPOSE A SENTENCE COMMENSURATE WITH A SECOND[-]DEGREE OFFENSE.

POINT IV

ASSUMING THE TRIAL COURT'S IMPOSITION OF A DISCRETIONARY EXTENDED TERM WAS APPROPRIATE, THE MAXIMUM 20 YEAR EXTENDED TERM WITH AN 85 PERCENT PAROLE DISQUALIFIER WAS CLEARLY MANIFESTLY EXCESSIVE.

POINT V

THE TRIAL COURT COULD NOT PROPERLY HAVE IMPOSED EXTENDED TERMS ON COUNTS II AND III AS WELL AS ON COUNT I.

We have considered these arguments in light of the record and applicable legal standards. We agree that only one extended term of imprisonment could be imposed upon defendant, N.J.S.A. 2C:44-5(a)(2), a point the State concedes. We therefore are compelled to ...


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