On appeal from the Superior Court of New Jersey, Law Division, Morris County.
Fritz, Ard and Trautwein.
[183 NJSuper Page 300] Defendant appeals from a denial of his motion for reconsideration of sentence. He contends that his case was pending at the time the New Jersey Code of Criminal Justice, N.J.S.A. 2C:1-1 et seq. (Code) went into effect and argues that under the Code sentencing provisions his State Prison terms should have been
imposed to run concurrently with and not consecutive to a previously imposed county jail sentence.
On March 6, 1978 defendant, pursuant to a plea negotiation, pleaded guilty to conspiracy and attempted breaking and entry, which crimes were committed on June 24, 1977. On April 21, 1978 he received two consecutive terms of two to three years to be served in the New Jersey State Prison. The sentences were denominated consecutive to defendant's one-year sentence to the Essex County Correctional Center (County) which he was then serving. On February 22, 1980 defendant's convictions and sentences were affirmed. His petition for certification was denied by the New Jersey Supreme Court on May 28, 1980.
Defendant moved before the original sentencing judge on June 27, 1980 for reconsideration of his sentence pursuant to R. 3:21-10. The motion was denied on August 19, 1980.
He argues that inasmuch as his appeal was pending at the time the Code became effective (September 1, 1979), he was entitled under the provisions of N.J.S.A. 2C:1-1(c)(1) to the procedural benefits conferred by N.J.S.A. 2C:44-5(a) and (b). If, indeed, he was so entitled, his two State Prison terms should be modified to run concurrently with his county jail sentence. The net effect would be a credit of three months.
N.J.S.A. 2C:1-1(c)(1) provides in pertinent part as follows:
c. In any case pending on or initiated after the effective date of the code involving an offense committed prior to such date:
(1) The procedural provisions of the Code shall govern, insofar as they are justly applicable and their application does not introduce confusion or delay;
Defendant urges that sentencing, to the extent of exercising discretion as to whether concurrent or consecutive terms are imposed, is "procedural" and hence N.J.S.A. 2C:44-5 governs within the framework of facts in this appeal. N.J.S.A. 2C:44-5 provides in pertinent part as follows:
a. Sentences of imprisonment for more than one offense. When multiple sentences of imprisonment are imposed on a defendant for more than one offense, including an offense for which a previous suspended sentence or sentence of ...