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State v. Neff

Decided: April 24, 1961.

THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
PHILLIP T. NEFF, DEFENDANT-APPELLANT



Goldmann, Foley and Lewis. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

Defendant appeals from his conviction on indictments charging him with forgery of two checks, in violation of N.J.S.A. 2A:109-1(a) (two counts), and with making and uttering worthless checks, in violation of N.J.S. 2A:111-15 (two counts).

The checks, payable to defendant's order and apparently drawn by M. L. Gordon and Frank Lynro against the account of El Personalized Service in a Pittsburgh bank, were dated September 25, 1952 and cashed by defendant in Ocean City, Cape May County, two days later. The checks were soon returned from Pittsburgh marked "unable to locate [account] in this office." Defendant left New Jersey and was arrested on a fugitive warrant in Lexington, Kentucky, on October 16, 1952. The Cape May grand jury returned

its indictments on November 7. Defendant had been admitted to bail pending an extradition hearing, but before the rendition warrant issued he fled Kentucky, forfeiting the bail. He was again apprehended on July 11, 1957 in South Carolina and extradited to stand trial in New Jersey. Thereafter he entered a plea of not guilty and was released on $2,500 bail.

The two indictments were consolidated for trial, which began December 2, 1957. On December 6 the jury returned a verdict of guilty as charged under both indictments. The court fixed January 10, 1958 as the date for sentence, and increased the bail to $5,000. Defendant having failed to appear on sentence day, his bail was ordered forfeited and a bench warrant issued for his arrest. The bail was found to be worthless.

It was not until early in 1960 that defendant was again apprehended and returned by extradition to New Jersey. He finally was sentenced on March 18, 1960 to a term of 5-7 years in State Prison on each count of the forgery indictment, to run concurrently, and 1-1 year on each count of the uttering of fraudulent checks indictment, also to run concurrently. However, the forgery sentence and the one for uttering were to run consecutively. Defendant was resentenced on May 17, 1960 to 3-5 years for forgery and 1-1 year for uttering, all sentences to run concurrently. He filed his notice of appeal May 24, 1960.

There is no need to recite the details of the crimes since they have no significant relation to the grounds of appeal. Defendant raises two points: (1) reference by a witness for the State to defendant's plea of guilty to a former charge of forgery was prejudicial error since defendant did not take the stand; and (2) the trial judge committed prejudicial error in the course of his charge when he did not indicate that intent was a necessary element in finding defendant guilty of forgery. In its answering brief the State contends that the appeal should be dismissed because the notice of appeal was not filed within the time permitted

by R.R. 1:3-1(a). We shall consider and dispose of this argument first.

I.

R.R. 1:3-1 provides that in criminal causes an appeal shall be taken within three months after entry of final judgment. The "final judgment" in a criminal case, after whose entry appeal time begins to run, is the sentencing rather than the return of the jury verdict. State v. Hintenberger , 41 N.J. Super. 597, 601 (App. Div. 1956), certification denied 23 N.J. 57 (1956); In re Zach , 61 N.J. Super. 591, 594 (App. Div. 1960). Defendant's notice of appeal falls well within that limit.

The State, however, argues that defendant should be barred from this appeal because the more than two years' delay from conviction to sentencing was the result of his fleeing from justice. To apply the general rule, says the prosecutor, would lead to a complete frustration of justice. The State does not cite authority for its proposition, nor does it offer reasons why the fact that defendant jumped bail and delayed the sentencing for more than two years should effect a forfeiture of his right to appeal. No matter what one might think of defendant's unwillingness to face up to the consequence of his crime, and the ...


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