July 31, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
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).
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 SEPARATE SENTENCING HEARING. (N.J. CONST. ART. I, PAR. 11).
Defendant asserts that the additional consecutive sentence imposed after he had already begun serving a life sentence amounted to double jeopardy. We conclude that this argument has no merit. We affirm substantially for the reasons set forth in Judge Callahan's careful and thorough opinion. We add only the following comments.
At the time of defendant's conviction, N.J.S.A. 2A:151-5 read as follows:
Any person who commits or attempts to commit an assault, robbery, larceny, burglary, breaking and entering, rape murder, mayhem, arson, abduction, extortion, kidnapping, sodomy or treason, or who is a fugitive from justice, when armed with or having in his possession any firearm . . . shall, in addition to the punishment provided for the crime, be punished on a first conviction by imprisonment for not less than one nor more than 10 years . . . .
In State v. Kirchoff, 167 N.J.Super. 394, 397 (App. Div. 1979), certif. denied, 81 N.J. 275 (1979), we held that "N.J.S.A. 2A:151-5 does not describe a separate substantive offense. It merely offers a sentencing judge an opportunity to enhance the sentence for the substantive crime within his discretion in cases where defendant is armed while committing any of certain substantive offenses" Therefore we are satisfied that sentencing in this case did not implicate the constitutional proscription against double jeopardy.
Furthermore the sentencing for the "armed" portion of the conviction was scheduled to occur following conviction and imposition of the life sentence on the first part of the conviction to permit time for the preparation of the pre-sentence report as required by law N.J.S.A. 2C:44-6; R. 3:21-2 There was nothing improper or illegal in continuing the sentencing one month for that reason Defendant's motion was properly denied.