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State v. Maxey

Decided: November 21, 1962.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOSEPH WILLIAM MAXEY, DEFENDANT-APPELLANT



On motion for correction of sentence.

Fulop, J.c.c.

Fulop

THE ISSUE

This is a motion for correction of an allegedly illegal sentence.

On October 27, 1961 defendant was convicted by a jury of two counts of murder in the first degree. On each count the jury recommended life imprisonment.

One murder of which defendant was convicted involved the killing of a woman by knocking her to the ground and running a heavy automobile back and forth over her body. The other murder occurred some minutes later when defendant strangled another woman with a man's trouser belt. Thus there were two distinct acts of killing, by different methods, separated by some period of time.

On October 30, 1961 I sentenced defendant to imprisonment for life on each count in accordance with the jury verdict. As part of the sentence I ordered that the sentence on the second count be served consecutively to that on the first count.

Defendant contends that the imposition of consecutive or cumulative terms of imprisonment was illegal. This is the issue to be decided.

Since this motion was not made within 60 days from the date of the judgment of conviction, the exercise of discretion in imposing the sentences cannot be revised. R.R. 3:7-13(a) provides:

"3:7-13. Correction or Reduction of Sentence.

(a) The court may correct an illegal sentence at any time. The court may reduce or change a sentence within 60 days from the date of the judgment of conviction, or, if an appeal is taken within the 60 days, within 10 days of the issuance of the mandate by the appellate court."

Therefore, I shall not deal with the reasons for the imposition of the sentence, but only with the legality thereof.

THE FORM OF THE SENTENCE

The oral imposition of sentence appears at page 3205 of the transcript and reads in part as follows:

"On Indictment No. 275, the May Session, 1960 Term, Count 1, Joseph William Maxey, you are sentenced to imprisonment in the State Prison for the remainder of your natural life. Credit for time served in jail is 157 days * * *.

On Count 2 of the same indictment, Joseph William Maxey, you are sentenced to imprisonment in the State Prison for the remainder of your natural life and insofar as possible this sentence shall be consecutive to the sentence on Count 1."

The judgment of conviction signed on the same day, October 30, 1961, reads in part as follows:

"ORDERED AND ADJUDGED that the defendant be and is sentenced on Count #1 to State Prison for the remainder of his natural life, credit for 157 days spent in jail. Sentence on Count #2

to State Prison for the remainder of his natural life. Sentence to run consecutively with Count #1."

It is argued that the sentence was uncertain in the oral delivery because it contained the words "insofar as possible." I see no lack of clarity or certainty. No one could misunderstand. See State v. Pohlabel , 40 N.J. Super. 416 (App. Div. 1956), for general discussion.

THE POWER TO PROVIDE THAT SENTENCES BE SERVED CONSECUTIVELY

N.J.S. 2A:113-4 provides in part as follows:

"Every person convicted of murder in the first degree, his aiders, abettors, counselors and procurers, shall suffer death unless the jury shall by its verdict, and as a part thereof, upon and after the consideration of all the evidence, recommend life imprisonment, in which case this and no greater punishment shall be imposed."

Able counsel for defendant contends that this statute deprives the court of all power to deal with the sentence since it leaves no discretion as to penalty, citing State v. Hipplewith , 33 N.J. 300 (1960), in which the court said:

"But in New Jersey the jury is directed by statute to determine appropriate punishment in first degree ...


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