STATE OF NEW JERSEY v. WILLIAM A. MCCRAY (90-05-1387, CAMDEN COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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-2621-20
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WILLIAM A. MCCRAY,
a/k/a WILLIAM MCCRAY,
and WILLIAM DENUMS,
Defendant-Appellant.
_______________________
Argued September 28, 2022 – Decided October 6, 2022
Before Judges Messano and Gummer.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 90-05-1387.
Patricia B. Quelch argued the cause for appellant
(Helmer, Conley & Kasselman, PA, attorneys; Patricia
B. Quelch, of counsel and on the brief).
Catlin A. Davis, Deputy Attorney General, argued the
cause for respondent (Matthew J. Platkin, Acting
Attorney General, attorney; Catlin A. Davis, of counsel
and on the brief).
PER CURIAM
In 1991, a jury convicted defendant of several crimes: including first-
degree purposeful or knowing murder, N.J.S.A. 2C:11-3(a); first-degree felony
murder, N.J.S.A. 2C:11-3(a)(3); first-degree armed robbery, N.J.S.A. 2C:15-1;
third-degree hindering, N.J.S.A. 2C:29-3(b)(1); second-degree possession of a
weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and third-degree
unlawful possession of a weapon, N.J.S.A. 2C:39-5(b).
On the murder conviction, the judge sentenced defendant to life in prison
with a thirty-year parole disqualifier. The judge merged the felony-murder and
murder convictions. On the armed-robbery conviction, he sentenced defendant
to a twenty-year consecutive term with a ten-year parole disqualifier. On the
hindering conviction, the judge sentenced defendant to a five-year concurrent
term with a two-and-one-half-year parole disqualifier. On the conviction for
possession of a weapon for an unlawful purpose, the judge sentenced defendant
to a ten-year concurrent term with a five-year parole disqualifier. On the
conviction for unlawful possession of a weapon, the judge sentenced defendant
to a five-year concurrent term with a two-and-one-half-year parole disqualifier.
Defendant filed a direct appeal. We affirmed his convictions and
sentence. State v. McCray, No. A-0889-91 (App. Div. June 7, 1994). The
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Supreme Court denied defendant's petition for certification. State v. McCray,
164 N.J. 560 (2000). Defendant twice petitioned the trial court for post-
conviction relief. The trial court denied the first petition in 2003 and dismissed
as untimely the second petition in 2015.
Defendant moved to correct an illegal sentence. The trial court denied
that motion in an April 9, 2021 order. Appealing that order, defendant argues:
POINT I THE HEARING COURT ERRED BY
FINDING AGGRAVATING FACTOR
ONE WAS PROPERLY CONSIDERED
BY THE SENTENCING COURT.
POINT II THE HEARING COURT ERRED BY
AFFIRMING DEFENDANT'S
CONSECUTIVE SENTENCES.
POINT III THE HEARING COURT ERRED BY NOT
FINDING AN ILLEGAL SENTENCE
DUE TO FAILURE TO MERGE
CONVICTIONS.
POINT IV AT DEFENDANT'S RESENTENCING,
THE SENTENCING COURT SHOULD
CONSIDER THE REHABILITATION
EFFORTS MADE BY THE DEFENDANT
WHILE INCARCERATED.
Because they are not about the illegality of his sentence, defendant's first
two arguments are time-barred. A defendant may file "at any time" a motion
"correcting a sentence not authorized by law . . . ." R. 3:21-10(b)(5). Otherwise,
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except under specific circumstances not applicable here, a defendant must move
"to reduce or change a sentence . . . not later than [sixty] days after the date of
the judgment of conviction." R. 3:21-10(a).
Our Supreme Court has identified and narrowly defined "two categories
of illegal sentences: those that exceed the penalties authorized for a particular
offense, and those that are not authorized by law." State v. Hyland, 238 N.J.
135, 145 (2019). Defendant's arguments about consideration of an aggravating
factor and the consecutive running of sentences do not fall within those limited
categories. "[E]ven sentences that disregard controlling case law or rest on an
abuse of discretion by the sentencing court are legal so long as they impose
penalties authorized by statute for a particular offense and include a disposition
that is authorized by law." Id. at 145.
Instead, challenges to sentences based on aggravating factors or the
consecutive running of sentences must be raised in a direct appeal. State v.
Acevedo, 205 N.J. 40, 47 (2011) (finding "contentions regarding consecutive
sentences . . . do not relate to the issue of sentence 'legality'"); State v. Flores,
228 N.J. Super. 586, 595-96 (App. Div. 1988) (finding the sentencing judge's
alleged errors regarding aggravating and mitigating factors and the consecutive
running of sentences were "subject to correction only on direct appeal" and that
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defendant's arguments related to the "excessive[ness], but not the illegal[ity]" of
the sentence). In fact, defendant argued in his direct appeal the judge had abused
his discretion in imposing consecutive sentences for the murder and armed-
robbery convictions. We rejected that argument and affirmed. McCray, slip op.
at 6-7.
Defendant's third argument is equally unavailing. Defendant faults the
sentencing judge for first merging the felony-murder conviction with the murder
conviction instead of merging the armed-robbery conviction with the felony-
murder conviction and then merging the felony-murder conviction with the
murder conviction. Defendant contends "[t]here is no legal basis for making the
merger of the felony murder with the murder conviction first" and that "it is
more logical" to merge first the armed-robbery conviction with the felony-
murder conviction. Long-standing Supreme Court precedent tells us otherwise.
In State v. Brown, the Court faulted the trial court for doing exactly what
defendant proposes here – merging armed-robbery convictions with felony-
murder convictions and then merging the felony-murder convictions with
murder convictions – and directed the trial court on remand to resentence the
defendant, merging the felony-murder convictions with the murder convictions
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and not merging the armed-robbery convictions. 138 N.J. 481, 560-61 (1994).
The Court held:
Once defendant had been convicted of purposeful and
knowing murder for the criminal homicide of each
victim, his conviction for felony murder became
"surplusage" because that offense imposes criminal
liability for the homicide committed in the course of a
felony in the event that intent for the homicide cannot
be proved. See State v. Stenson, 174 N.J. Super. 402,
406-07 (Law Div. 1980), aff'd, 188 N.J. Super. 361(App. Div. 1982), . . . . Furthermore, because
defendant's felony-murder convictions merge into his
convictions for purposeful and knowing murder, the
armed-robbery convictions do not merge because proof
of the armed-robbery offenses is not necessary to
sustain defendant's convictions for purposeful and
knowing murder.
See also State v. Russo, 243 N.J. Super. 383, 411 (App. Div. 1990) (rejecting
defendant's merger argument, we held "[b]ecause defendant was convicted not
only of felony murder but also purposeful and knowing murder, the felony
murder conviction was 'surplusage' and thus the underlying felony of robbery
was not required to be merged into it").
Affirmed.
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