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State v. Nyhammer

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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