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State v. Lee

State v. Lee

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Published by Benjamin Kelsen
Defendant correct states that neither attempts, generally, nor attempted murder specifically are included in NJSA 2C:25-19a which lists the offenses which can constitute domestic violence. i.e. attempted murder does not constitute domestic
violence for purposes of the $100 surcharge to which
defendants convicted of an act of domestic violence
are subject.
Defendant correct states that neither attempts, generally, nor attempted murder specifically are included in NJSA 2C:25-19a which lists the offenses which can constitute domestic violence. i.e. attempted murder does not constitute domestic
violence for purposes of the $100 surcharge to which
defendants convicted of an act of domestic violence
are subject.

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Published by: Benjamin Kelsen on Feb 04, 2011
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02/04/2011

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986 A.2d 42
 
Page 1
 
411 N.J.Super. 349, 986 A.2d 42
 
(Cite as: 411 N.J.Super. 349, 986 A.2d 42)
 
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
 
 
Superior Court of New Jersey,
 
Appellate Division.
 
STATE of New Jersey, Plaintiff-Respondent,
 
v.
 
Joseph Allen LEE, Defendant-Appellant.
 
Argued Dec. 16, 2009.
 
Decided Jan. 19, 2010.
 
Background:
Defendant was convicted upon a pleain the Superior Court, Law Division, Union County,to attempted murder, and he was sentenced to 18years in custody with 85 percent thereof to be served before parole eligibility under the No Early ReleaseAct (NERA). Defendant appealed.
 
Holdings:
The Superior Court, Appellate Division,Stern, P.J.A.D., held that:
 
(1)factual basis for the plea to attempted murder wasadequate;
 
(2)sentence imposed for attempted murder was notexcessive; but
 
(3)attempted murder does not constitute domesticviolence for purposes of the $100 surcharge to whichdefendants convicted of an act of domestic violenceare subject.
 
Affirmed in part, vacated in part, and remanded.
 
West Headnotes
 
[1]Criminal Law 110
273(4.1)
 
110Criminal Law
 
110XVPleas
 
110k272Plea of Guilty
 
110k273In General
 
110k273(4)Requisites and Proceedingsfor Entry
 
110k273(4.1)k. In general.MostCited Cases Factual basis for a plea to attempted murder wasadequate, where defendant, in his plea colloquy, ac-knowledged that he attacked victim so hard with ahammer that victim thought that it was imbedded inher chest and acknowledged that he beat victim aboutthe head, causing a skull fracture resulting in 15 sta- ples in her head.
 
[2]Homicide 203
1567
 
203Homicide
 
203XIVSentence and Punishment
 
203k1565Extent of Punishment in General
 
203k1567k. Murder.Most Cited Cases 
Pardon and Parole 284
50
 
284Pardon and Parole
 
284IIParole
 
284k48Eligibility for Parole or Parole Con-sideration
 
284k50k. Minimum sentence, and compu-tation of term in general.Most Cited Cases 
Sentencing and Punishment 350H
95
 
350HSentencing and Punishment
 
350HIPunishment in General
 
350HI(E)Factors Related to Offender 
 
350Hk93Other Offenses, Charges, Mis-conduct
 
350Hk95k. Nature, degree, or serious-ness of other misconduct.Most Cited Cases Sentence for attempted murder of 18 years incustody with 85 percent thereof to be served before parole eligibility under the No Early Release Act(NERA) was not excessive, given defendant's crimi-nal record, which included domestic violence of-fenses and a prior sentence, and injuries suffered byvictim.
 
[3]Costs 102
292
 
102Costs
 
102XIVIn Criminal Prosecutions
 
102k292k. Liabilities of defendant.MostCited Cases 
 
986 A.2d 42
 
Page 2
 
411 N.J.Super. 349, 986 A.2d 42
 
(Cite as: 411 N.J.Super. 349, 986 A.2d 42)
 
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
 
Attempted murder does not constitute domesticviolence for purposes of the $100 surcharge to whichdefendants convicted of an act of domestic violenceare subject.
N.J.S.A
.
2C
:25-19a,2C:25-29.4.
 
[4]Statutes 361
241(1)
 
361Statutes
 
361VIConstruction and Operation
 
361VI(B)Particular Classes of Statutes
 
361k241Penal Statutes
 
361k241(1)k. In general.Most CitedCases Penal statutes, including those imposing penal-ties as part of a sentence, are to be strictly construed.
 
**42
Mark H. Friedman, Assistant Deputy PublicDefender, argued the cause for appellant (YvonneSmith Segars, Public Defender, attorney).
 
Meredith L. Balo, Assistant Prosecutor, argued thecause for respondent (Theodore J. Romankow, UnionCounty Prosecutor, attorney).
 
Before JudgesSTERN,GRAVES 
FN1
andLYONS.
 
FN1.Judge Graves did not participate inoral argument but, with the consent of the parties, has been added for the disposition of the appeal. The matter was argued on theSentence Oral Argument calendar.
 
The opinion of the court was delivered by
 
**43
 STERN, P.J.A.D.
 
*351
 [1]Defendant appeals from a judgment of conviction and challenges, as excessive, his sentenceof eighteen years in the custody of the Commissioner of the Department of Corrections, with eighty-five percent thereof to be served before parole eligibilityunder the No Early Release Act (NERA), for at-tempted murder. In his plea colloquy defendant ac-knowledged attacking the victim “so hard with thehammer” that the victim thought it was “imbeddedinto her chest.” Defendant acknowledged he beat thevictim “about the head” causing askull fracturere-sulting in fifteen staples in her head. The factual basisfor the attempted murder is adequate and under-standably not contested. The sentence was made con-current to a sentence simultaneously imposed on aviolation of probation for possession of CDS.
 
The State offered a negotiated recommendationof twenty years for the plea to attempted murder inexchange for the dismissal of other charges andwaiver by the prosecutor of an application for ex-tended term sentencing. The judge agreed to permitdefendant to withdraw his plea in the event he de-cided to impose a sentence above eighteen years,which the judge thought was appropriate in light of  NERA.
See R.
3:9-3(e). These facts were all spelledout at the plea colloquy.
 
[2]Given defendant's record, including prior domestic violence offenses and a prior sentencecommitting defendant to the custody of the Depart-ment of Corrections for eighteen years with the NERA component for attempted murder, based onhis stabbing a prior girlfriend who declined to marryhim, and the injuries sustained by this victim, thecustodial sentence cannot be deemed excessive.
Statev. Natale,
184
 N.J.
458, 878
 A.
2d 724 (2005);
State v.O'Donnell,
117
 N.J.
210, 564
 A.
2d 1202 (1989);
Statev. Ghertler,
114
 N.J.
383, 555
 A.
2d 553 (1989);
Statev. Roth,
95
 N.J.
334, 471
 A.
2d 370 (1984).
See alsoState v. Spinks,
66
 N.J.
568, 573, 334
 A.
2d 23 (1975).
 
*352
 [3]Defendant specifically challenges theimposition of a $100 surcharge for his convictions based on acts of domestic violence (DV).
 N.J.S.A
.
 
2C
:25-29.4provides that “a person con-victed of an act of domestic violence, as that term isdefined by [
 N.J.S.A
.
 
2C
:25-19a] shall be subject to asurcharge in the amount of $100 payable to theTreasurer of the State of New Jersey for use by theDepartment of Human Services to fund grants for domestic violence prevention, training and assess-ment.” Under 
 N.J.S.A
.
 
2C
:25-19a “ ‘domestic vio-lence’ means the occurrence of one or more of the[listed offenses] inflicted upon a person protectedunder [the Prevention of Domestic Violence Act].”
See
 N.J.S.A
.
 
2C
:25-19d defining “victim of domesticviolence.” We note that there were no questions atthe plea colloquy regarding the relationship betweendefendant and the victim, and suggest that establish-ing that relationship under the Act is a prerequisite tothe imposition of the domestic violence surcharge.However, defendant contests application of the as-sessment only because attempted murder is not in-

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