STATE OF NEW JERSEY VS. HUSSEIN DIGGS (98-05-2570, ESSEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 24, 2017
• Docket: A-3088-15T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3088-15T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HUSSEIN DIGGS,

Defendant-Appellant.

__________________________________

Submitted July 5, 2017 – Decided July 24, 2017

Before Judges Nugent and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 98- 05-2570.

Hussein Diggs, appellant pro se.

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Hussain Diggs appeals from a January 21, 2016

Criminal Part order denying his motion to correct an illegal

sentence. We affirm. This case has a lengthy procedural history. In 1999, a jury

found defendant guilty of attempted murder, N.J.S.A. 2C:5-1 and

N.J.S.A. 2C:11-3; first-degree robbery, N.J.S.A. 2C:15-1; second-

degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); possession of

a handgun without a permit, N.J.S.A. 2C:39-5(b); and possession

of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a). After

appropriate mergers, the trial court imposed an aggregate sentence

of fifty years with eighty-five percent to be served without parole

under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Defendant appealed and raised the following arguments: (1)

the judge's conduct deprived him of a fair trial; (2) the

prosecutor made improper remarks in her opening and closing

statements; (3) the judge abused his discretion in excluding

evidence of a prosecution witness's criminal conviction; and, (4)

the sentence imposed on the conviction of attempted murder was

manifestly excessive. In a supplemental pro se brief, defendant

argued he was denied the right to confront witnesses against him.

We affirmed defendant's convictions but remanded the case for

resentencing. State v. Diggs, No. A-1225-99 (App. Div. May 8,

2001), certif. denied, 170 N.J. 85 (2001). We found the trial

court had improperly imposed NERA's eighty-five percent period of

parole ineligibility on the extended term for attempted murder

rather than on the ordinary term. Id. (slip op. at 11-12). We

2 A-3088-15T1 also noted that N.J.S.A. 2C:43-6(c) "requires imposition of a

parole disqualifier between one-third and one-half of the base

term.[1] Since defendant's base term is fifty years, the judge may

impose a parole disqualifier up to one-half of that sentence,

i.e., twenty-five years." Ibid.

On remand, the court sentenced defendant to an aggregate term

of fifty years. The sentence included, on the attempted murder

count, a fifty-year prison term with twenty-five years of parole

ineligibility under the Graves Act, N.J.S.A. 2C:43-6(c).

Defendant did not file an appeal from that sentence.

Thereafter, defendant filed a petition for post-conviction

relief (PCR). He argued:

POINT I

PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.

POINT II

THE ADMISSION OF CERTAIN HEARSAY EVIDENCE WAS IMPROPER AND DEPRIVED PETITIONER OF HIS CONSTITUTIONAL RIGHT TO CONFRONT THE WITNESSES AGAINST HIM.

POINT III

THE COURT'S JURY INSTRUCTION ON IDENTIFICATION WAS INCOMPLETE AND INADEQUATE AND DEPRIVED PETITIONER OF A FAIR TRIAL.

1 The statute has since been amended and the minimum period of parole ineligibility has been increased. L. 2013, c. 113.

3 A-3088-15T1 POINT IV

THE SENTENCE IMPOSED UPON THE DEFENDANT FOLLOWING TRIAL AND PETITIONER'S REJECTION OF A PLEA OFFER, WAS EXCESSIVE AND SHOULD BE MODIFIED AND REDUCED.

Following an evidentiary hearing, Judge Michael A. Petrolle denied

defendant's PCR petition. We affirmed, State v. Diggs, No. A-

0072-10 (App. Div. Oct. 24, 2011), and the Supreme Court denied

certification, 210 N.J. 109 (2012).

In July 2012, defendant filed a petition for a writ of habeas

corpus, which the United States District Court for the District

of New Jersey denied and dismissed. Diggs v. Holmes, No. 12-4357

(D.N.J. June 27, 2013).

On December 15, 2015, defendant filed the motion to correct

an illegal sentence. Judge Petrolle denied the motion on the

ground the Appellate Division had previously decided the issue.

This appeal followed.

Defendant makes the following arguments:

POINT ONE

BECAUSE THE LAW DIVISION ERRED IN SUMMARILY DENYING DEFENDANT'S MOTION TO CORRECT AN ILLEGAL SENTENCE; THE MATTER SHOULD BE REMANDED TO THE LAW DIVISION FOR RESENTENCING IN ACCORDANCE WITH THIS COURT'S RULING IN STATE V. ANDINO, 345 N.J. Super. 35 (2001);

4 A-3088-15T1 STATE V. ALLEN, 337 N.J. Super. 259 (2001); STATE V. MANZIE, 335 N.J. Super. 267 (2000).2

Defendant's argument is without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

2 The Legislature amended NERA to enumerate the first- and second- degree offenses to which NERA applies. L. 2001, c. 129 (effective June 29, 2001). The amendment was in response to the Appellate Division decisions in State v. Manzie, 335 N.J. Super. 267, 276 (2000) (holding NERA does not apply to murder because murder has a separate sentencing scheme), aff'd, 168 N.J. 113 (2001), State v. Mosley, 335 N.J. Super. 144, 149 (2000) (holding NERA does not apply to tender years sexual assaults without physical force), certif. denied, 167 N.J. 633 (2001), and State v. Thomas, 322 N.J. Super. 512, 515-16 (1999) (same), aff'd, 166 N.J. 560 (2001). State v. Parolin, 171 N.J. 223, 232 (2002).

5 A-3088-15T1