On appeal from the Superior Court of New Jersey, Law Division, Resentencing Panel, whose opinion is reported at 174 N.J. Super. 407 (1980).
Fritz, Ard and Trautwein. The opinion of the court was delivered by Ard, J.A.D.
Defendant appeals from a judgment of resentence by the three-judge Resentencing Panel which was constituted by directive of the Supreme Court (see 104 N.J.L.J. 489 (December 6, 1979)). The primary issue presented to us is whether the congruent offense to forgery (N.J.S.A. 2A:109-1 a) is theft by deception (N.J.S.A. 2C:20-4) under the New Jersey Code of Criminal Justice effective September 1, 1980.
Defendant entered pleas of guilty to three counts in Monmouth County Indictment 216-78. On March 16, 1979 he was sentenced as follows:
Count I, forgery (N.J.S.A. 2A:109-1a) -- five to seven years in State Prison;
Count II, uttering a forged instrument (N.J.S.A. 2A:109-1b) -- three to five years in the State Prison concurrent with the sentence imposed on count I;
Count III, obtaining money under false pretenses (N.J.S.A. 2A:111-1 and N.J.S.A. 2A:85-5) -- one to two years in the State Prison concurrent with the sentences imposed on counts I and II.
The facts are not in dispute. On August 7, 1978 defendant went into the First National Bank in Middletown and forged the name of the real depositor to a savings account withdrawal slip and attempted to withdraw $560. The teller recognized that defendant was not the depositor and called the police. The police came to the bank and arrested defendant. This transaction constituted the factual basis for the aforementioned guilty pleas to the three counts of the indictment.
On December 10, 1979 defendant filed a motion for resentencing under N.J.S.A. 2C:1-1 d(2). In addition to Indictment 216-78, the motion included sentences on other indictments. However, at the hearing before the Resentencing Panel on February 20, 1980, defendant, represented by counsel, sought resentencing only on Indictment 216-78.
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 effective date of the code for offenses which are eliminated or downgraded by the code. The pertinent portion of the aforementioned statute is as follows:
(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 though the person had been convicted under the code, except that no period of detention or supervision shall be increased as a result of such resentencing.
The Panel found "good cause," and that finding is not in dispute. Subsequently the Panel held the congruent offense for forgery was theft by deception, N.J.S.A. 2C:20-4 a. State v. Reed , 174 N.J. Super. 407, 410-411 (Resent. Panel 1980). Since defendant was apprehended at the time he was attempting to withdraw the $560, the Panel determined the crime was an attempted theft by deception. It reasoned:
Defendant appeals and urges the following as error:
POINT I -- The Resentencing Panel erroneously determined that certain forgeries should be graded pursuant to the provisions of N.J.S.A. 2C:20-2(b).
POINT II -- Defendant's conviction for attempting to obtain money by false pretenses should be merged into his conviction ...