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State of New Jersey v. Joseph T. Austin

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 12, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOSEPH T. AUSTIN, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 99-09-1206.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: July 5, 2011

Before Judges Cuff and Fuentes.

Defendant Joseph Austin appeals from the June 12, 2008 order denying his motion for reconsideration of sentence.

Defendant is serving a seventy-year term of imprisonment with a thirty-five-year period of parole ineligibility for the murder of his twenty-year-old girlfriend.

On direct appeal, we vacated the No Early Release Act (NERA)*fn1 period of parole ineligibility and affirmed the sentence. State v. Austin, No. A-2400-99 (App. Div. Oct. 5, 2001).

Defendant's petition for post-conviction relief was denied; we affirmed. State v. Austin, No. A-249-05 (App. Div. Apr. 12, 2007). Defendant's petition for habeas corpus was denied. Austin v. Ricci, No. 07-4428 (D.N.J. Feb. 6, 2009). Defendant now appeals from the denial of his motion for reconsideration of his sentence.

On appeal, defendant raises the following argument

POINT I -THE ORDER DENYING DEFENDANT'S MOTION TO CORRECT AN UNLAWFUL SENTENCE SHOULD BE REVERSED AND THE MATTER REMANDED FOR RESENTENCING BECAUSE IMPOSITION OF A 35 YEAR PERIOD OF PAROLE INELIGIBILITY UNDER THE GRAVES ACT RESULTED IN AN UNLAWFUL EXTENDED TERM SENTENCE.

We discern no basis to disturb this sentence. The sentence is legal. Defendant pled guilty to knowing or purposeful murder. Defendant shot the victim twice. As such, N.J.S.A. 2C:43-6(c), the Graves Act, required imposition of a period of parole ineligibility between one-third and one-half of the base term. When Judge Villano resentenced defendant pursuant to our mandate, see Austin, supra, A-2400-99, slip op. at 2, the judge imposed a thirty-five-year parole ineligibility term, one-half of the seventy-year base term. This is not an extended Graves Act parole ineligibility term.

The June 12, 2008 order denying defendant's motion for reconsideration of sentence is, therefore, affirmed. Affirmed.


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