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State v. Epstein

Decided: March 18, 1980.

STATE OF NEW JERSEY, PLAINTIFF,
v.
JEROME M. EPSTEIN, DEFENDANT



Marzulli and Yanoff. The opinion of the court was delivered by Yanoff, J.s.c.

Yanoff

[175 NJSuper Page 95] After a jury trial defendant, together with others, was found guilty under Indictment 1528-74 of conspiracy, and under Indictment 1394-74 of 101 counts of receiving stolen property over the value of $500. Under Indictment 1528-74 he was sentenced to New Jersey State Prison to a 1-3-year term, and under Indictment 1394-74 he was sentenced on count 201 to a 1-3-year term, and on count 202 to a 1-3-year term, the three terms to run consecutively, so that defendant's aggregate sentence was three-to-nine years. He was also sentenced to a term of 1-3-years on each of counts 203, up to and including count 286, and on counts 90 through and including 297, and also on counts 299,

300, 301, 304, 305, 308 and 313 to a term of 1-3-years, all sentences under these counts to run concurrently with the other sentences. In addition, a separate fine of $500 was imposed on each count.

Defendant is presently incarcerated in New Jersey State Prison. Indictment 1528-74 charged him and others of having "unlawfully conspired . . . to embezzle, steal, carry away and receive the property of Exxon Company, U.S.A. . . .." [emphasis added]. The overt acts charged began on or about February 1969 and continued to March 18, 1975. The statute alleged in Indictment 1528-74 was N.J.S.A. 2A:98-1 (conspiracy); in Indictment 1394-74 N.J.S.A. 2A:119-2(A) (larceny), which constitutes larceny of $500 or more and is a high misdemeanor; N.J.S.A. 2A:102-5 (embezzlement by employees, etc.), and N.J.S.A. 2A:139-1 (receiving stolen property), under which receipt of property of the value of $500 or more is a high misdemeanor. The penalty for conspiracy under N.J.S.A. 2A:98-1, except in cases involving controlled dangerous substances, was three years. The penalty under the receiving counts was seven years. Thus, theoretically, for the 102 counts of receiving stolen property, defendant could have received an aggregate sentence of 714 years, and for the conspiracy charge a sentence of three years, so that he was exposed to a possible sentence of 717 years.

Defendant applied for resentencing under N.J.S.A. 2C:1-1d(2), on the theory that the conspiracy charge was for the same substantive offense as that for which he had been convicted, namely, receiving stolen goods, and that under N.J.S.A. 2C:1-8 a(2) he may not be convicted of both the conspiracy and the substantive charge, and therefore this offense has been eliminated by the Code, in consequence of which he was entitled to be resentenced.

He argued also that under N.J.S.A. 2C:1-1 c(2) he was entitled to be resentenced because his case was pending on the effective date of the Code, September 1, 1979.

N.J.S.A. 2C:1-1 c(2) provides:

c. In any case pending on or initiated after the effective date of the code involving an offense committed prior to such date:

(2) The court, with the consent of the defendant, may impose sentence under the provisions of the code applicable to the offense and the offender.

N.J.S.A. 2C:1-1 d(2) provides:

(2) Any person who is under sentence of imprisonment on the effective date of the code for an offense committed prior to the effective date which has been eliminated by the code or who has been sentenced to a maximum term of imprisonment for an offense committed prior to the effective date which exceeds the maximum established by the code for such an offense and who, on said effective date, has not had his sentence suspended or been paroled or discharged, may move to have his sentence reviewed by the sentencing court and the court may impose a new sentence, for good cause shown as ...


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