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State v. Azzollini

Superior Court of New Jersey, Appellate Division

July 31, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
STEPHEN F. AZZOLLINI, Defendant-Appellant

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 15, 2013

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 78-11-1393.

Joseph E. Krakora, Public Defender, attorney for appellant (Laura B. Lasota, Assistant Deputy Public Defender, on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Stephanie Davis-Elson, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

Before Judges Parrillo and Maven.

PER CURIAM

Defendant Stephen F. Azzollini appeals from a Law Division order dated June 23, 2011, denying his motion to correct an illegal sentence. We affirm.

The salient facts are as follows. On November 26, 1979, a Hudson County Grand Jury returned a one count indictment against defendant charging him with Aiding and Abetting Murder While Armed, contrary to N.J.S.A. 2A:113-1; N.J.S.A. 2A:113-2; N.J.S.A. 2A:151-5; and N.J.S.A. 2A:85-14. Dennis Raso, defendant's companion, pled guilty to the murder. After an eleven day trial that concluded on November 19, 1980, the jury found defendant guilty as charged. Defendant was immediately sentenced to a mandatory term of life in prison for the first degree murder conviction, and subsequently on December 19, 1980, he was sentenced to an additional consecutive term of seven- to eight-year term of imprisonment for the "while armed" portion of his conviction.

We affirmed the conviction and sentence on direct appeal. State v. Stephen Azzollini, No. A-1644-80 (App. Div. Dec. 23. 1982), certif. denied, 93 N.J. 290 (1983).[1]

Defendant brought this instant motion on July 12, 2010. The Honorable Kevin G. Callahan, J.S.C., heard oral argument and issued a written opinion on June 23, 2011, denying the motion. Although defendant had raised the claim of an excessive sentence in the direct appeal, Judge Callahan determined that the claim of an illegal sentence was not procedurally barred. In this motion, defendant argued that the additional sentence of seven to eight years to run consecutive to the life sentence was illegal, as the "while armed" portion of the indictment and conviction was not separately charged, and that pursuant to N.J.S.A. 2C:1-1(c)(1), the "armed" portion of the charges should have been merged into the murder conviction for sentencing.

The judge rejected defendant's claim and stated that defendant, given his role in the crime, was punishable as a principal, and therefore subject to the sentencing enhancements found in N.J.S.A. 2A:151-5. Further the judge, citing State v. Jones, 66 N.J. 563, 567 (1975), recognized that the Supreme Court has upheld the constitutionality of N.J.S.A. 2A:151-5, which allows a trial judge, in the exercise of sound discretion, to make separate sentences for being armed consecutive to the sentence for the crime. This appeal followed.

On appeal, defendant raises only one claim:

I. THE SENTENCING COURT VIOLATED [DEFENDANT'S] RIGHT TO BE FREE FROM DOUBLE JEOPARY WHEN IT INCREASED HIS LIFE TERM BY SENTENCING HIM TO AN ADDITIONAL CONSECUTIVE SENTENCE ON THE SAME CHARGE DURING A ...

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