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State of New Jersey v. Tysheim Murphy

May 16, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
TYSHEIM MURPHY, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-04-00858.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 24, 2012

Before Judges Payne, Reisner and Hayden.

Defendant Tysheim Murphy appeals from his conviction for first-degree armed robbery, and associated offenses, and from the aggregate sentence of thirty-eight years in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.*fn1

On this appeal, defendant raises the following points for our consideration:

POINT I: THE TRIAL COURT MISAPPLIED ITS DISCRETION IN DENYING DEFENDANT'S MOTION FOR SEVERANCE AND/OR MISTRIAL MADE AFTER THE OPENING STATEMENT BY COUNSEL FOR CO-DEFENDANT HAYES.

A. THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS UNDULY PREJUDICED BY THE DANGER OF "GUILT BY ASSOCIATION" THAT WAS AGGRAVATED BY THE OPENING STATEMENT.

B. THE TRIAL COURT MISAPPLIED THE "LAW OF THE CASE" DOCTRINE.

C. THE TRIAL COURT'S MISPLACED CONFIDENCE IN ITS ABILITY TO ISSUE AN ADEQUATE AMELIORATING INSTRUCTION RENDERED THE DEFENDANT'S TRIAL UNFAIR.

POINT II: THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE THE TRIAL COURT FAILED TO APPLY APPROPRIATE N.J.R.E. 404(B) CRITERIA IN ADMITTING EVIDENCE OF A PRIOR ASSOCIATION BETWEEN THE DEFENDANT AND "AMY." POINT III: THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY THE PROSECUTOR'S OVER-ZEALOUSNESS IN SUMMATION (NOT RAISED BELOW).

POINT IV: THE MOTION COURT ERRED IN NOT DISMISSING THE INDICTMENT BECAUSE THE PROSECUTOR'S INADEQUATE INVESTIGATION AND MANNER OF PRESENTATION RESULTED IN THE SUBMISSION OF "HALF TRUTHS" AND UNDERMINED THE DEFENDANT'S STATE CONSTITUTIONAL RIGHT TO INDICTMENT BY GRAND JURY.

POINT V: THE TRIAL COURT APPLIED AN ERRONEOUS STANDARD IN DENYING THE DEFENDANT'S MOTION FOR A NEW TRIAL.

POINT VI: IMPOSITION OF THE EXTENDED TERM BASE SENTENCE OF 38 YEARS IMPRISONMENT ON THE DEFENDANT'S CONVICTION FOR FIRST DEGREE ROBBERY ON COUNT TWO WAS MANIFESTLY EXCESSIVE AND REPRESENTED A MISAPPLICATION OF THE COURT'S DISCRETION.

A. THE TRIAL COURT APPLIED INAPPROPRIATE SENTENCING CRITERIA IN GRANTING THE PROSECUTOR'S MOTION TO IMPOSE AN EXTENDED TERM SENTENCE.

B. IMPOSITION OF A 38 YEAR BASE TERM ON THE DEFENDANT'S CONVICTION WAS MANIFESTLY EXCESSIVE.

Finding no merit in Points I through V, we affirm the conviction. We remand for reconsideration of the sentence and for correction of the judgment of conviction (JOC) to ...


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