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State v. Boyd

Superior Court of New Jersey, Appellate Division

May 15, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
MARK A. BOYD, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 1, 2013

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-10-3864.

Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Brian Pollock, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

Before Judges Axelrad and Haas.

PER CURIAM

Defendant Mark Boyd appeals from a December 16, 2010 order denying his petition for post-conviction relief (PCR) and the March 7, 2011 decision of the judge to resentence him to an aggregate term of twenty years in prison. We affirm.

Defendant was convicted by a jury of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count two); two counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (counts three and five); attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count four); third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count seven); third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count eight); and third-degree resisting arrest, N.J.S.A. 2C:29-2 (count nine). Defendant was also convicted of second-degree aggravated assault as a lesser-included offense of a second count of attempted murder (count one). He was acquitted of third-degree burglary, N.J.S.A. 2C:18-2 (count six).

The judge sentenced defendant to a term of seven years on count one, with a mandatory eighty-five percent parole ineligibility period pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; four years on count two; twenty years on count four, with a mandatory seventeen-year period of parole ineligibility under NERA; and four years on count eight. All of these sentences were to run concurrently with each other. The remaining counts were merged for sentencing purposes. The judge imposed the minimum statutory required penalties on each count with the exception of count four for which the judge imposed a $1, 000 VCCB penalty.

Defendant filed a direct appeal and raised the following arguments:

POINT I
THE JUDGE'S EXPLANATION OF THE REQUISITE MENTAL STATE FOR A CRIMINAL ATTEMPT IMPROPERLY VARIED BETWEEN "PURPOSEFUL" AND "PURPOSEFUL OR KNOWING."
POINT II
THE TRIAL JUDGE IMPROPERLY PLACED THE BURDEN OF DISPROVING FLIGHT ON DEFENDANT.
POINT III
THE SENTENCE IMPOSED FOR ATTEMPTED MURDER IS MANIFESTLY EXCESSIVE AS IS THE VIOLENT CRIMES COMPENSATION BOARD ...

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