Fritz, Botter and Ard. Botter, J.A.D., concurring.
[156 NJSuper Page 54] Defendant was charged in two indictments with various counts of conspiracy, larceny and embezzlement. By retraxit motion granted, he pleaded guilty to six counts of embezzlement (N.J.S.A. 2A:102-5) and to conspiracy (N.J.S.A. 2A:98-1). On the conspiracy count he was sentenced to one to three years in State Prison and fined $1,000.
The embezzlement counts appeared in a separate indictment. On each of the six counts to which he pleaded guilty a $500 fine was assessed. Additionally, defendant was sentenced to concurrent State Prison terms of one to three years on each of these counts. However, the sentence on the last of these counts was suspended and a three-year probationary period was imposed.
Defendant filed a notice of appeal.*fn1
Thereafter, the sentencing judge summoned the parties and advised them of circumstances whereby he had been apprised of defendant's position that his imposition of probation of the suspended sentence constituted a "split sentence," and was illegal. The judge explained, as indeed he had at the time of sentencing, that he contrived the suspended sentence and fairly lengthy probation to accommodate defendant financially by extending the time through a subsequent probation period during which defendant could pay his fines.
Following this explanation, the judge gave defendant, who was present throughout, an opportunity to confer with counsel. Counsel reported:
He [the defendant] understands the hearing today. He understands what the Court has said, and he understands what I have said, and he and I have just discussed it a little bit, and he would request through me and we do request that we simply vacate the probationary part of the sentence on the last count in which he was sentenced, allow the suspended sentence to stand. It will clear up any possible question of illegality, and the defendant understands that his appeal will then be directed solely to the question of the
excessiveness of the sentence and whether he should have bail pending appeal.
The judge went to great lengths in explanation and in inviting assistance from defendant's attorney, because, as he put it,
All I tried to do was in a complex matter all through, impose what I thought was the real punishment here, which was the jail sentence, and then accommodate as far as I could on the fine.
Now, if we can have a meeting of the minds, fine, but I don't want to do something which I think is for the defendant's benefit and have him think it's for his benefit, and then have it also thrown back as being illegal, because that's a contradiction in terms as far as I'm concerned.
The judge's fears were realized. In addition to arguing before us that his sentence "was manifestly excessive and an abuse of discretion," defendant seeks a remand, saying in his brief, "Notwithstanding the Court's desire to amend the sentence on its' [ sic ] own initiative ...