STATE OF NEW JERSEY v. SAM LIVINGSTON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0120-04T40120-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SAM LIVINGSTON,

Defendant-Appellant.

__________________________________________________

 

Submitted March 21, 2007 - Decided May 21, 2007

Before Judges Wefing, C.S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 03-05-0606.

Yvonne Smith Segars, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, of counsel and on the brief).

Stuart Rabner, Attorney General, attorney for respondent (Michael J. Williams, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Sam Livingston (defendant) was indicted and charged with two counts of first-degree robbery (counts one and two), N.J.S.A. 2C:15-1; two counts of theft by unlawful taking (counts three and four), N.J.S.A. 2C:20-3(a)(3); unlawful possession of an assault firearm (count five), N.J.S.A. 2C:39-5(f); two counts of possession of a weapon for an unlawful purpose (counts six and seven), N.J.S.A. 2C:39-4(a); two counts of aggravated assault (counts eight and nine), N.J.S.A. 2C:12-1(b)(4); and theft by receiving stolen property (count ten), N.J.S.A. 2C:20-7. Defendants Jovaughn Jordan, Curtis Buck, Ernie Lane and Tamar Rawls were also charged in the same indictment with the commissions of the same offenses.

Pursuant to a plea agreement, defendant pled guilty to counts one and two. The plea agreement was expressly made subject to the outcome of a motion to suppress filed by defendant Lane, and also contained the parties' understanding that defendant would receive any benefit derived from the results of that motion. Defendant also reserved the right to appeal if the suppression motion was denied.

The trial judge partially granted and partially denied the suppression motion in a written opinion rendered on March 8, 2004. Defendant was thereafter sentenced to concurrent ten-year terms of imprisonment, with an 85% period of parole ineligibility.

Defendant filed an appeal, raising the following arguments for our consideration:

I. DEFENDANT'S CONVICTION MUST BE REVERSED SINCE THE LOWER COURT ERRED IN FAILING TO SUPPRESS ALL EVIDENCE SEIZED.

A. The Trial Court Correctly Held That Defendant Has Standing to Challenge The Search And Seizure.

B. The Trial Court Erred In Denying The Defense Motion To Suppress The Rifle.

C. The Trial Court Erred In Denying The Defense Motion To Suppress The Bandanna [sic].

II. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S REQUEST TO SENTENCE TO A SECOND DEGREE CRIME.

A. The Mitigating Factors Substantially Outweigh The Aggravating Factors.

B. The Interest of Justice Would Be Served By Sentencing Defendant To A Crime Of The Second Degree.

Our decision in State v. Lane, __ N.J. Super. __ (App. Div. 2007), which was also filed today, vacated the order denying the suppression motion and remanded for further proceedings. Since defendant is entitled to the benefit of that ruling, we need not now reach the argument contained in Point II, but instead remand this matter for any further proceedings required by the ultimate outcome of the suppression motion in State v. Lane.

Remanded for further proceedings. We do not retain jurisdiction.

 

We have decided the appeals filed by defendants Jordan (A-2958-04T4), Buck (A-1047-04T4) and Rawls (A-0026-04T4) in separate unpublished opinions also filed today.

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A-0120-04T4

May 21, 2007