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State of New Jersey v. Nicholas P. Muscio

May 19, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT.
v.
NICHOLAS P. MUSCIO, JR., DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 89-08-0993.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: May 9, 2011

Before Judges C.L. Miniman and LeWinn.

Defendant Nicholas Muscio appeals from a September 9, 2009, order denying his motion for reconsideration of sentence. We now affirm.

Defendant was charged with purposeful and knowing murder, contrary to N.J.S.A. 2C:11-3a(1), (2); burglary, contrary to N.J.S.A. 2C:18-2; possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4; and felony murder, contrary to N.J.S.A. 2C:11-3. He was tried in May 1991 and convicted on all counts except the weapons charge. He was then sentenced to an aggregate term of life plus twenty years with a forty-year parole disqualifier. He appealed his conviction and sentence. While that appeal was pending, defendant pled guilty to a similar offense in North Carolina. He was sentenced to forty years to be served concurrently with his still-pending life term after his initial conviction in New Jersey.

Thereafter, we reversed and remanded for a new trial based on the State's use of other-crimes evidence.

Defendant was retried in 1995 and convicted of purposeful and knowing murder but acquitted of burglary and felony murder.

The following year, he was sentenced to life in prison with a thirty-year parole disqualifier. This time, his sentence was to commence after defendant completed serving the sentence imposed in North Carolina, obviating the concurrent aspect of the North Carolina sentence. Defendant again appealed, but this time we affirmed his conviction and the sentence imposed. State v. Muscio, No. A-3947-95 (App. Div. Apr. 27, 1998). In that appeal, defendant raised six issues, the last of which is as follows:

"POINT VI - RESENTENCING DEFENDANT TO A CONSECUTIVE PRISON TERM AFTER HE WAS AGAIN CONVICTED FOLLOWING A SUCCESSFUL APPEAL, VIOLATED THE FEDERAL AND STATE CONSTITUTIONAL BARS AGAINST DOUBLE JEOPARDY, VIOLATED HIS DUE PROCESS RIGHTS, AND FAILED TO COMPORT WITH PRINCIPLES OF COMITY AND FAIRNESS. THE TRIAL COURT ALSO ERRED IN FAILING TO AWARD DEFENDANT WITH CREDIT FOR TIME SPENT IN CUSTODY FROM THE DATE OF THE REVERSAL OF HIS PREVIOUS CONVICTIONS UNTIL THE TIME HE WAS RESENTENCED. U.S. CONST. Amends. V and XIV; N.J. CONST. (1947), Art. I, pars. 1 and 11)[.]"

[Id. at 4.]

We addressed this point on appeal as follows:

Defendant argues the trial court erred when it sentenced defendant to life imprisonment with a thirty-year parole ineligibility period to run consecutively to the forty-year term imposed by the North Carolina court. Defendant contends the consecutive element of the sentence violated the double jeopardy clause and the principles of comity because it increased defendant's total sentence (the 1995 New Jersey sentence and the 1993 North Carolina sentence) from the 1991 New Jersey sentence, which was subsequently reversed. Defendant also contends that the trial court erred in calculating his time served. We reject the contentions.

The trial court imposed the challenged sentence after it reviewed defendant's criminal record and found the following aggravating factors: (1) the heinous, cruel, and depraved manner with which the crime was committed; (2) the risk defendant would commit further offenses; (3) the extent of defendant's criminal record and the nature of the crimes committed; (4) the need for deterring ...


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