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State v. Nyhammer

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 1, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHN L. NYHAMMER, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 01-12-1510.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 2, 2007

Decided September 6, 2007, reported at 396 N.J. Super. 72 (App. Div. 2007).

Remanded by Supreme Court at 197 N.J. 383 (2009).

Resubmitted September 2, 2009

Before Judges Stern, A. A. Rodríguez and Sabatino.

Following a jury trial, defendant John L. Nyhammer was convicted of first degree aggravated sexual assault on A.N., a girl, then nine years old (count one), N.J.S.A. 2C:14-2a(1); four counts of second degree sexual assault (counts two, three, four and five), N.J.S.A. 2C:14-2b; and endangering the welfare of a child (count six), N.J.S.A. 2C:24-4a. The judge merged counts two, three, four and six into count one and imposed an eighteen-year term with a nine-year parole disqualifier. On count five, the judge imposed a concurrent seven-year term.

We reversed the convictions. State v. Nyhammer, 396 N.J. Super. 72 (App. Div. 2007). However, the Supreme Court reversed our judgment, reinstated defendant's convictions and remanded to us for "consideration of the unresolved issues raised by defendant's challenge to his sentence." State v. Nyhammer, 197 N.J. 383, cert. denied, 78 U.S.L.W. 3172 (2009). Defendant contended:

THE BASE SENTENCE IMPOSED ON THE DEFENDANT ON COUNT ONE IS EXCESSIVE, THE PERIOD OF PAROLE INELIGIBILITY IS UNWARRANTED, AND A REMAND IS REQUIRED PURSUANT TO STATE V. NATALE, 184 N.J. [458] (2005).

A. The Sentence Imposed Was Excessive.

B. The Period of Parole Ineligibility Was Unwarranted.

C. The Sentence Is Illegal Pursuant to State v. Natale and Its Progeny.

We now consider that issue.

The judge found five of the aggravating factors enumerated in N.J.S.A. 2C:44-1a, i.e., (1) the nature and circumstances of the offense and the role of the actor therein; (2) the gravity and seriousness of harm inflicted on the victim; (3) the risk that defendant will commit another offense; (6) the extent and seriousness of defendant's prior criminal record; and (9) the need for specific and general deterrence from violating the law. The judge found none of the mitigating factors listed in N.J.S.A. 2C:44-1b.

We express no view on the sentencing issues raised because we conclude that this matter must be remanded for sentencing pursuant to State v. Natale, 184 N.J. 458 (2005) (Natale II), and State v. Abdullah, 184 N.J. 497 (2005). Natale eliminated the presumptive terms, rendering the statutory maximum the top of the range for the crime charged. Id. at 487; State v. Pierce, 188 N.J. 155, 170 (2006). This elimination of the presumptive term was to have pipeline retroactive effect for pending appeals. Natale, supra, 184 N.J. at 494-95. This "pipeline retroactivity" was extended to "defendants with cases on direct appeal as of the date of this decision and to those defendants who raised Blakely claims at trial or on direct appeal-best balances principles of fairness and repose." Id. at 494; State v. Franklin, 184 N.J. 516, 540 (2005).

The sentences are vacated and remanded to the Law Division, Burlington County.

20091201

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