Carton, Crahay and Handler. The opinion of the court was delivered by Crahay, J.A.D.
On July 3, 1973 defendant was sentenced to a term of not less than 14 nor more than 15 years in New Jersey State Prison, entered on his bargained plea of non vult to a Camden County indictment charging him with the murder of Gene Sellers. The plea agreement included the prosecutor's recommendation that the maximum term not exceed 18 years.
On November 17, 1974 the trial judge, not the original sentencing judge, entered an order which provided that the original sentence --
Condition of Probation: Defendant is to enter a recognized Drug Rehabilitation (NARCO), as an In-Patient and to successfully complete the Drug Rehabilitation Program. When the Program is completed Camden County Probation Department is to be notified by the Authorities of the Center. * * *
On this appeal, the State challenges the order modifying sentence, advancing essentially an abuse of the trial judge's
discretion. Our review of the entire record satisfies us that there was a mistaken exercise of discretion and no warrant for the modification ordered. We reverse.
On March 18, 1973 Gene Sellers was slain as the result of knife wounds. The next day defendant confessed to the crime, alleging that it grew out of a quarrel concerning $20 he had loaned the victim. Defendant did not assert in his statement that narcotics were involved in the incident nor that he was, at the time, under their influence. At the plea retraction hearing defendant crystallized the affair thus --
Sellers was not armed and at the retraxit hearing defendant specifically disclaimed being under the influence of any stimulant but rather assumed he was in "a state of high anger."
On October 1, 1974, over a year and a half following his incarceration, defendant filed, pro se , a notice of motion to be transferred to a drug treatment facility under R. 3:21-10(a) stating that
The sole purpose of this Motion is rehabilitation by way of treatment for drug addiction.
Thereafter counsel was assigned to defendant and a hearing conducted.
Court C. Fisher testified in favor of defendant's transfer. Fisher was a project supervisor of the Correctional Drug Services unit within the Division of Narcotics and Drug Control. That unit was designed to provide evaluation and referral services for inmates in correctional facilities to community
based drug treatment centers. Fisher had met defendant approximately 12 times over a nine-month period and was of the opinion that
Fisher added that he believed defendant to have been a drug user at the time of Sellers' murder and that he would be a "good risk" in a noncustodial environment. We pause to observe that we find no record support for this view by Fisher.
In his own behalf defendant testified and at first recounted his history of narcotics use. At the time of the hearing, November 1974, he was 40 years of age. While in military service in 1954 he first experienced drugs -- marijuana and "goof balls." Upon discharge from the military in ...