On appeal from the Superior Court of New Jersey Resentencing Panel.
Michels, Ard and Furman. The opinion of the court was delivered by Furman, J.s.c. (temporarily assigned).
On this appeal by the State from a judgment of resentence by the three-judge resentencing panel, the State contends that the panel, which was constituted by a directive of the Supreme Court (see 104 N.J.L.J. 489 (December 6, 1979)), exceeded its authority and misapplied statutory and decisional law in granting defendant's motion for a resentence under N.J.S.A. 2C:1-1 d(2) of the Code of Criminal Justice.
N.J.S.A. 2C:1-1 d(2) provides for the reduction or modification "for good cause shown" of sentences of imprisonment imposed prior to the Code's effective date for offenses which are eliminated or downgraded in the code.
The State contends on appeal that (1) good cause was not shown by defendant or specifically found by the panel, and without good cause no reduction in defendant's sentence could be ordered; (2) the panel erroneously determined the equivalent or congruent offense to impairing the morals of a minor (N.J.S.A. 2A:96-3), of which defendant had been convicted, and (3) the modification to concurrent and not consecutive sentences was not mandated by State v. Clark , 65 N.J. 426 (1974), on which the panel erroneously relied.
Defendant raises a fourth issue: that the State has no right of appeal because of the bar of the double jeopardy clause of the Fifth Amendment to the Federal Constitution, which is applicable to the States through the Fourteenth Amendment. Benton v. Maryland , 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969).
Defendant, now 56, has a criminal record dating back to 1941. His sentences for four sex-related crimes which occurred within a four-month period in late 1961 and early 1962 and for another sex-related crime which occurred in 1975 are the subject of this appeal.
Defendant pleaded guilty in 1962 to an accusation charging him with rape, in violation of N.J.S.A. 2A:138-1, and to three accusations charging him with assault with intent to commit rape, in violation of N.J.S.A. 2A:90-2. The victims were all elderly women. He was sentenced under the Sex Offender Act, N.J.S.A. 2A:164-3, to an indeterminate maximum 30-year term for rape and to three indeterminate maximum 12-year terms for assault with intent to commit rape. All terms were consecutive, an aggregate maximum of 66 years.
In April 1974 defendant was released on parole. Several months later he was indicted for impairing the morals of a minor, in violation of N.J.S.A. 2A:96-3, and for abduction, in violation of N.J.S.A. 2A:86-3. He admitted that he offered money to the victim, a 12-year-old girl, whom he had heard was a prostitute, and, when she refused him, hugged and kissed her to try to arouse her. On a plea bargain he pleaded guilty only
to impairing the morals of a minor and was sentenced to an indeterminate maximum term of three years under the Sex Offender Act, consecutive to his other sentences, on which he was recommitted for parole violation.
On a motion for post-conviction relief defendant was granted a resentence in September 1979 by Judge Dios in accordance with State v. Clark, supra. His three sentences for assault with intent to rape were made concurrent to his sentence for rape and to each other. All these offenses, closely related in time and in circumstances, were determined to have resulted ...