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State v. Jordan

December 18, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
CRAIG JORDAN, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 01-07-2236.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 16, 2009

Before Judges Rodríguez and Chambers.

On June 12, 2002, defendant Craig Jordan was convicted by a jury of first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1) (count one), and second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count two). At the sentencing on July 26, 2002, the trial judge merged count two into count one and sentenced defendant to a term of twenty years with an eighty-five percent period of parole ineligibility (seventeen years) and a period of five years of parole supervision upon release pursuant to N.J.S.A. 2C:43-7.2, the No Early Release Act (NERA), together with the applicable fees and penalties.

On May 23, 2005, we affirmed the conviction, but we remanded for reconsideration of aggravating factors three and nine and resentencing in light of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004); Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed. 2d 435 (2000); State v. Natale, 373 N.J. Super. 226 (App. Div. 2004), aff'd in part, rev'd in part, 184 N.J. 458 (2005); and State v. Abdullah, 372 N.J. Super. 252 (App. Div. 2004), aff'd in part, rev'd in part, 184 N.J. 497 (2005).

Thereafter, on October 7, 2005, the trial court reduced defendant's sentence to sixteen years with an eighty-five percent period of parole ineligibility pursuant to NERA. Defendant's appeal of this sentence first appeared on our sentencing oral argument calendar. It was then transferred to the regular calendar and now comes before this court.

In this appeal, defendant raises the following point:

POINT ONE

DEFENDANT'S SIXTEEN-YEAR SENTENCE IS INVALID BECAUSE THE SIXTEEN-YEAR TERM COMBINED WITH THE FIVE-YEAR PERIOD OF PAROLE INELIGIBILITY HAS THE POTENTIAL TO RESULT IN A SENTENCE ABOVE THE STATUTORY MAXIMUM OF TWENTY YEARS.

Specifically, he argues that "because the five-year period of parole supervision imposed pursuant to NERA has the potential to increase his sixteen-year term to a twenty-one year term, which is above the twenty-year statutory maximum, the factual predicates for his NERA sentence were required to be presented to the grand jury."

Defendant was convicted of criminal conduct that occurred in April 2001. At that time, the No Early Release Act applied to a defendant who had committed a "violent crime."*fn1 A "violent crime" was defined as:

[A]ny crime in which the actor causes death, causes serious bodily injury as defined in subsection b[] of N.J.S. 2C:11-1, or uses or threatens the immediate use of a deadly weapon. "Violent crime" also includes any aggravated sexual assault or sexual assault in ...


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