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State v. Scott

August 27, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JAMES H. SCOTT, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 04-05-0414 and 04-05-0415.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 9, 2009

Before Judges Fisher and Sapp-Peterson.

A jury convicted defendant of nine counts of robbery, three counts of aggravated assault, four counts of possession of a weapon for an unlawful purpose, three counts of possession of a prohibited weapon or device, three counts of unlawful possession of a weapon, two counts of theft, and one count of receiving stolen property. Following the jury verdict, defendant pled guilty to a violation of N.J.S.A. 2C:39-7, being a person not permitted to be in possession of weapons. He received an aggregate custodial sentence of forty-three years, with an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On appeal, defendant raises the following points for our consideration:

POINT ONE DEFENDANT'S STATEMENTS SHOULD HAVE BEEN SUPPRESSED BECAUSE UNDER THE TOTALITY OF THE CIRCUMSTANCES[,] DEFENDANT'S CONFESSIONS WERE INVOLUNTARY.

POINT TWO THE TRIAL COURT'S CHARGE ON ACCOMPLICE LIABILITY DENIED THE DEFENDANT DUE PROCESS OF LAW AND A FAIR TRIAL IN THAT IT FAILED TO ADVISE THE JURORS THAT AN ACCOMPLICE COULD BE GUILTY OF A LESSER OFFENSE THAN THE PRINCIPAL. (NOT RAISED BELOW).

POINT THREE PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW).

POINT FOUR THE TRIAL COURT ABUSED ITS DISCRETION BY PERMITTING THE INTRODUCTION OF DEFENDANT'S REMOTE CONVICTIONS.

POINT FIVE THE IMPOSITION OF CONSECUTIVE SENTENCES FOR DEFENDANT'S ROBBERY CONVICTIONS IS CONTRARY TO THE PRINCIPLES OF STATE V. YARBOUGH, 100 N.J. 627 (1985), CERT. DENIED, 475 U.S. [1014] (1986).

POINT SIX THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO AN AGGREGATE TERM OF FORTY-THREE YEARS WITH AN [EIGHTY-FIVE PERCENT] PERIOD OF PAROLE INELIGIBILITY BECAUSE A QUALITATIVE WEIGHING OF THE AGGRAVATING FACTORS DOES NOT SUPPORT SUCH A SENTENCE.

We have carefully considered all of the points raised in light of the record, applicable legal principles, and arguments raised. We reject all of defendant's contentions and affirm.

I.

The court conducted a Miranda*fn1 hearing at which defendant, his mother, and two investigating police detectives testified: Detectives Constantine Sedares and Robert Cheslock. The evidence presented during the hearing disclosed that defendant was arrested on May 20, 2003, when a vehicle he was operating was stopped by police for disregarding a stop sign. During the stop, defendant's passenger, initially identified as Hassan Thomas but later identified as Levell Burnett, made a kicking motion with his feet, causing the investigating officer, Yolanda Foster, to look into the vehicle, at which point she observed a pocket knife on the floor of the vehicle. After removing Burnett from the vehicle, a search of its interior revealed a black handgun with an elongated barrel and large capacity ...


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