On certification to the Superior Court, Appellate Division.
For affirmance in part; reversal in part -- Chief Justice Wilentz, and Justices Clifford, Schreiber, Handler, Pollock, O'Hern and Garibaldi. The opinion of the Court was delivered by Handler, J. Schreiber, J., concurs in result.
[97 NJ Page 265] In this case defendant was convicted of several serious crimes, including felony murder and robbery, and given separate custodial sentences on each of these convictions, which
aggregated thirty years with fifteen years of parole ineligibility. The issue is whether, upon a merger of the convictions for felony murder and robbery following defendant's appeal, double jeopardy precludes resentencing the defendant after he has begun to serve the sentence originally imposed.
At 8:00 P.M. on November 1, 1980, defendant, Angel Acosta Rodriguez, entered the apartment of Maria Cruz, who lived with her grandson, Pedro Cruz, and mentally-retarded daughter, Evelyn Castro. After leaving the apartment to go drinking, defendant returned. Pedro awoke to see defendant sexually assaulting Evelyn. Hidden in the closet, Pedro saw his grandmother attempt to stop defendant. Defendant punched Maria and then followed her into the kitchen. Pedro left the closet, looked into the kitchen, and watched as Rodriguez shot Maria and subsequently removed money from her brassiere.
At trial, defendant objected to the appointment of Blanca Castro as interpreter for her sister Evelyn, who spoke Spanish and had a speech impediment. Rodriguez claimed Blanca, as sister of the sexual assault victim and daughter of the murder victim, would not or could not be impartial. The court overruled the objection, allowing Blanca to act as interpreter, but appointed an official court interpreter to check any partiality. The court ruled that Evelyn was competent to be a witness and capable of expressing herself with the help of her sister.
Defendant was convicted by the jury of murder, N.J.S.A. 2C:11-3, sexual contact, N.J.S.A. 2C:14-3(b), aggravated assault, N.J.S.A. 2C:12-1(b)(4), unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), and robbery, N.J.S.A. 2C:15-1. He was sentenced to a term of twenty years with a minimum ten-years parole ineligibility period for felony murder, to two concurrent terms of eighteen months for criminal sexual contact and aggravated assault, to a concurrent term of three years for the unlawful possession of a handgun, and to a term of ten years
with a minimum five-years parole ineligibility period for the predicate felony, robbery, consecutive to his sentence for felony murder. Penalties were also imposed on each of the counts under the Violent Crimes Compensation Board Act.
Defendant appealed his conviction, claiming reversible trial error relating to the appointment of Blanca Castro, the victim's sister, as interpreter and the trial court's determination that Evelyn Castro was a competent witness. He also asserted that the convictions for felony murder and robbery merged and, further, that the aggregate sentence that had been imposed was excessive. The Appellate Division, in an unreported opinion, affirmed defendant's conviction for felony murder, criminal sexual contact, aggravated assault, and unlawful possession of a handgun, but merged defendant's conviction for robbery with defendant's conviction for felony murder, vacating the sentence imposed for robbery. The court found the sentences imposed not excessive. In addition, the Appellate Division denied the State's request for a remand to the trial court for resentencing de novo for felony murder as a result of the merger of the robbery conviction. The court also found that Evelyn Castro was a competent witness and that the trial court had ample justification in appointing her sister, Blanca Castro, as interpreter, along with the court interpreter. The State filed a petition for certification, seeking review of the Appellate Division's judgment denying resentencing. Defendant also filed a petition for certification seeking review of the affirmance of his convictions based on the asserted trial errors. We granted the State's petition and denied defendant's cross-petition, 94 N.J. 547 (1983).
The issue in this case is whether the trial court has the power to resentence the defendant in excess of the criminal sentence for felony murder upon the merger of the robbery conviction into the felony murder conviction. In deciding that double
jeopardy*fn1 barred the court from resentencing the defendant for felony murder in excess of the twenty years he had received originally upon this conviction, the Appellate Division stated that "it is clear that in this State we adhere to the principle that after a sentence has gone into operation the courts lose power to increase it," citing State v. Ryan, 86 ...