On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Lora, Michels and Larner. The opinion of the court was delivered by Michels, J.A.D.
Defendant John Sanducci appeals from the trial judge's denial of his motion for a new trial, brought on the ground of newly discovered evidence, and from his refusal to amend his custodial sentence to permit his release from State Prison because of illness, pursuant to R. 3:21-10(b). The State cross-appeals from the trial judge's reduction of defendant's sentence, contending that the trial court lacked jurisdiction to reduce defendant's sentence by virtue of the time bar of R. 3:21-10(a).
Briefly stated, the relevant facts are as follows. After a lengthy jury trial defendant was convicted of threatening to kill Dr. Herve Bryon for purposes of extortion (N.J.S.A. 2A:105-4) and, on June 27, 1975, was sentenced to State Prison for 10 to 15 years. Defendant appealed the conviction and the sentence imposed thereon. Execution of the sentence
was stayed pending appeal. On June 3, 1977 we affirmed the judgment of conviction but remanded the matter to the trial court for an amended statement of reasons for the sentence, retaining jurisdiction solely for the purpose of considering the claimed excessiveness thereof. State v. Sanducci , 150 N.J. Super. 400 (App. Div. 1977). On June 6, 1977 the trial judge amended his reasons, in conformance with our remand, stating in part:
The defendant is being sentenced for a serious crime of threatening the life of his proposed victim and should serve a long term of imprisonment to act as a deterrent to others. The Court's concern for the defendant's rehabilitation does not outweigh its deep interest in the right of law-abiding persons to live in our society without fear of terror tactics such as that shown by the defendant. Sympathy and compassion for those committing such crimes must remain secondary to the law's duty to maintain public safety.
On June 16, 1977, while the appeal was still pending, defendant moved to set aside his conviction on the ground that "the State did not truly represent that, in fact, there was an agreement between the main State witness [DeStefano] and the State," and alternatively, for reconsideration and modification of his sentence for health reasons. On June 28, 1977 these motions were dismissed without prejudice. On June 29, 1977 we affirmed the amended judgment in an unpublished opinion, State v. Sanducci , Docket No. A-3951-74, and on September 12, 1977 the Supreme Court denied certification. State v. Sanducci , 75 N.J. 524 (1977).
On October 13, 1977 defendant again moved for a new trial and modification of his sentence. While the record is not entirely clear, it appears that the motion, which was made returnable on October 21, 1977, was adjourned from time to time, but never heard or decided. On March 2, 1978, after defendant retained other counsel, he moved for a third time to set aside his conviction and to suspend his sentence. Following a lengthy plenary hearing the trial judge denied both motions. While the judge refused to amend defendant's custodial sentence to permit his immediate release from prison
because of defendant's illness, he nevertheless reduced defendant's State Prison sentence of 10 to 15 years to 3 to 5 years, stating:
I will not suspend the sentence. I'm satisfied that his condition of [health] has deteriorated. The health condition as I've outlined, as I've stated it to be does not warrant a suspension. I feel that he can get the necessary treatment in prison, but that a combination of the diabetes and the heart and the ten or fifteen years term would be too long a ...