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State v. Tyler

Decided: July 15, 1965.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
THEODORE R. TYLER, JR., DEFENDANT-APPELLANT



Kilkenny, Goldmann and Lewis. The opinion of the court was delivered by Lewis, J.A.D.

Lewis

In this appeal defendant, by his assigned counsel, contends that he was improperly resentenced as a third time narcotics offender under N.J.S.A. 24:18-47(b)(3) and argues that the only course now available to the courts is to resentence him as a first offender. The essential facts follow.

On September 12, 1958 defendant pleaded non vult to a charge of unlawful possession of narcotics and two other accusations (breaking, entering and larceny, and unlawful possession

of burglar tools), for which he was sentenced to imprisonment for two to three years on each accusation, the terms to be served concurrently.

Defendant, on May 29, 1959, entered a plea of non vult to an indictment (four counts dealing with narcotics offenses) charging him, inter alia, with the unlawful sale of narcotics. The resultant prison-term sentences were for five to seven years on each count, the same to run concurrently with the sentence he was serving at that time. The sentences imposed were suspended on condition that defendant enter the federal narcotics hospital at Lexington, Kentucky, "to remain there until discharged by Parole and Hospital Authorities."

On August 27, 1962 he pleaded guilty to three complaints in the Plainfield Municipal Court, wherein he was charged with being a user of narcotic drugs, having in his possession barbiturates, and also possessing three hypodermic needles. He was sentenced to consecutive one-year terms in the county jail for each offense.

In September 1962 two more indictments were returned against him. Indictment No. 56 charged the unlawful sale of narcotics, and indictment No. 57 alleged unlawful possession thereof. He pleaded not guilty to the former and in the course of trial, on motion made by defense counsel, a judgment of acquittal was entered. Defendant, however, retracted his original plea of not guilty to indictment No. 57 and entered a plea of guilty. He was thereupon, on January 31, 1963, given a sentence of ten years to life, to be served in the State Prison upon completion of the prior municipal court sentences, and he was also fined $500.

Parenthetically, we note at this point that on March 22, 1963, at defendant's request, the terms of the municipal court sentences were reduced to nine months on each conviction, to run concurrently with the ten years to life sentence, and he was then remanded to the State Prison.

It appears from the record that the aforesaid January 1963 sentence was imposed by the trial court pursuant to N.J.S.A. 24:18-47, which provides for enhanced punishment of

second- and third-time narcotics offenders. The indictment (No. 57), however, makes no reference to prior offenses, and no formal accusation with respect thereto was served upon defendant or his counsel apprising them of the State's intention to invoke the statute. The failure of the State to provide such notification formed the basis of a motion by defendant on September 19, 1963, initiated under R.R. 3:7-15 (deleted as of January 2, 1964; note current R.R. 3:10A-2(c)), contending that he should be resentenced only as a first offender and that the prior assessment of punishment should be corrected accordingly.

Arguments on the aforesaid motion were heard by the Union County Court on October 4, 1963 and January 16, 1964, after which the court, in concluding the matter, stated:

"He wants to be sentenced as a first offender. He will be remanded to the County jail. The Prosecutor will draw the proper notice, serve it personally upon the defendant and his counsel that he is to be re-sentenced by me as a third offender ...


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