For reversal and remandment -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. For affirmance -- None. The opinion of the Court was delivered by Clifford, J.
Defendant was convicted of conspiracy to make and take book contrary to N.J.S.A. 2A:98-1. He was sentenced to New Jersey State Prison for a term of one to two years and fined $1,000. His appeal, in which the sentence was not challenged, resulted in the conviction being affirmed by the Appellate Division in an unreported opinion, and we denied certification, 66 N.J. 328 (1974).
Thereafter defendant brought a motion for a reduction of sentence pursuant to R. 3:21-10. After a hearing the motion was denied, and this determination was affirmed by the Appellate Division, also in an unpublished opinion. On defendant's petition we granted certification, 68 N.J. 167 (1975). Throughout the proceedings Tumminello has remained free on bail.
Defendant's position essentially is that changed circumstances since the date of his original sentence justify a modification of his sentence as provided by R. 3:21-10. Those circumstances are said to consist of (a) a drastic deterioration in defendant's health and (b) a change in the state of our law. The first relates to the progressive effects of diabetes mellitus, and the second to this Court's decision in State v. Souss, 65 N.J. 453 (1974), handed down after the sentencing here in question and, according to defendant, setting forth certain guidelines which should lead to probation in this case. Because of our determination on the first ground, we need not address the second.
At the time of sentencing in November, 1972, Tumminello was 43 years old, married, the father of two children, and without any record of criminal involvement prior to the present conviction. At the time of his arrest he had worked for the same employer for about 10 years. In June, 1971, shortly after he had been indicted, defendant learned he was suffering from diabetes. The following month as a consequence of that disease he was hospitalized, and a toe on his right foot was removed. He returned to the hospital in December for further surgery necessitated by an infection.
Following his sentencing Tumminello was again confined to the hospital in May, 1973, for an operation on his left foot. After having been home for only a week after that confinement he returned for amputation of a toe on that foot; and about a year later another toe was removed from the same foot. While the cause was pending before this Court, still another toe was amputated.
The treating physicians have furnished affidavits describing Tumminello's condition as peripheral neuropathy secondary to diabetes, resulting in ulcerations of both feet which in turn become infected and require periodic debridement and special footwear. He receives medication on a regular basis, undergoes urine and blood testing, and there must be "meticulous attention * * * to proper care of the feet." One physician was of the opinion that the aggravating circumstance of imprisonment "might well result in the loss of one or both of his legs due to infection." The State has countered with a letter from the Chief Medical Consultant to the Department of Institutions and Agencies (who, however, has never seen defendant or his medical records and whose opinion is based upon information obtained in a telephone conversation with a deputy attorney general) to the effect that the prison medical program is adequate to insure that Tumminello would receive "the kind of care which he would need for his medical problems."
To recapitulate: at the time of sentencing defendant had lost one toe; as of the motion to amend the sentence, two more toes had been amputated; and by the time the case was argued before us, a fourth toe had been removed.
Reduction or change of sentence is treated in R. 3:21-10 which reads in part as follows:
(a) Time. Except as provided in paragraph (b) hereof, a motion to reduce or change a sentence shall be filed not later than 60 days after the date of the judgment of conviction, or, if a direct appeal is taken, not later than 20 days after the date of the judgment of the appellate court. The court may reduce or change a sentence, either on motion or on its own initiative, by other entered within 75 days from the date of the judgment of conviction or, if a direct appeal was taken, within 35 days of issuance of the judgment of the appellate court, and not thereafter.
(b) Exceptions. A motion may be filed and an order may be entered at any time (1) changing a custodial sentence to permit entry of the defendant into a custodial or non-custodial treatment or rehabilitation program for drug or alcohol abuse, or (2) amending a custodial sentence to permit the release of a defendant because of illness or infirmity of the defendant or (3) changing a sentence ...