On appeal from the Superior Court of New Jersey, Law Division, Mercer County.
Matthews, Antell and Francis.
This is an appeal from an order entered in the Law Division, Mercer County, ordering reinstatement of the sentence originally imposed upon defendant after convictions for carnal abuse and debauching the morals of a minor.
On November 7, 1980 defendant was sentenced to a term of 15 years in the New Jersey State Prison pursuant to his conviction for carnal abuse in violation of N.J.S.A. 2A:138-1, with a three-year term for violation of N.J.S.A. 2A:96-3, debauching the morals of a minor, to run concurrently with the longer sentence. On December 16, 1980 defendant filed a notice of appeal from both the conviction and the sentence.
We affirmed the conviction but vacated the sentence for failure to provide defendant with a copy of a diagnostic report and an opportunity to comment on it, and the case was remanded for resentencing.
On remand for resentencing, on July 29, 1982 the Law Division judge reimposed the 15-year term. Defendant's medical history was brought up at the resentencing hearing and the judge read medical reports submitted by defendant and the prosecutor. He noted reports from Dr. Lecks, defendant's treating physician for a number of years, who was of the opinion that defendant's condition was adversely affected by his obesity and
emotional state, and that he might become completely incapacitated if subjected to enough stress; from Dr. DeGoma and from Dr. Krosnick. The State submitted reports by Dr. De Sandre and Dr. Winant.
Judge Barlow found at the July 29, 1982 hearing that there was not a sufficient showing that incarceration was not a viable alternative. In reimposing the original sentence he also weighed the gravity and seriousness of the offense against the danger of incarcerating someone in defendant's condition, as directed by State v. Tumminello, 70 N.J. 187 (1976).
Because of Dr. Lecks' opinion, Judge Barlow asked the Superintendent of the Youth Reception and Correction Center, Yardville, to have defendant examined and to report to him as to whether defendant could receive proper medical care while incarcerated and whether incarceration could be life-threatening. He received a memorandum dated August 4, 1982, in which Dr. Valenzuela stated that, due to defendant's physical condition, incarceration could jeopardize his life.
As a result, Judge Barlow held a R. 3:21-10(b)(2) hearing on August 6, 1982. According to respondent's brief, the judge specifically stated at that time that he was holding a "Tumminello" hearing. Dr. Valenzuela testified at this hearing to the effect that, although the hospital at Yardville could accommodate defendant, he did not know of any prison that could care for defendant outside of the hospital setting. At the termination of the August 6, 1982 hearing, Judge Barlow vacated the sentence imposed on July 29, 1982 and amended defendant's sentence to make it a three-year probationary term.
On August 13, 1982 the State filed a notice of appeal from the order vacating defendant's sentence under N.J.S.A. 2C:44-1(f).
On August 16, 1982 the State filed a notice of motion for a stay pending appeal and an order readmitting defendant to bail, which was granted on August 23, 1982.
On August 23, 1982 the State filed an amended notice of appeal from the order of August 6, 1982, along with a notice of
motion for leave to appeal the interlocutory order entered by Judge Barlow on August 6, 1982, which had vacated defendant's original sentence in favor of a probationary sentence and a fine. The State also filed a motion for ...