On appeal from the Superior Court of New Jersey, Law Division, Somerset County.
King, Deighan and Bilder. The opinion of the court was delivered by King, P.J.A.D.
On this appeal the defendant contends that a three-year mandatory minimum sentence constitutes "cruel and unusual" punishment in violation of the federal and State Constitutions.
This matter has been returned to us following our remand of July 25, 1983 in A-5576-81T4. Defendant was charged in a five-count indictment and pled guilty to official misconduct as a police officer, N.J.S.A. 2C:30-2, and unlawful possession of a revolver with purpose to use it unlawfully against another, N.J.S.A. 2C:39-4a, both second-degree crimes. At his plea hearing defendant admitted participating in financing a scheme to distribute cocaine. He admitted carrying the revolver, in addition to a mace canister, blackjack and knife, for protection during the promotion of the sale of the cocaine.
At the time of the original sentencing, the trial judge observed that the weapon charge was a violation of the so-called "Graves Act," N.J.S.A. 2C:43-6(c), Ch. 31, L. 1981, requiring a mandatory three-year term of incarceration. The judge refused to impose the mandatory term because of defendant's illness, migratory thrombophlebitis, and his vulnerable personal status in a penal institution, because he had been a police officer. Instead he sentenced defendant to "a term of seven years New Jersey State Prison, sentences suspended, probation three years, each count, concurrent with each other. Additional condition -- obtain psychiatric treatment." The State appealed pursuant to N.J.S.A. 2C:44-1f(2). We remanded for a plenary hearing on the issue of whether the mandatory custodial sentence constituted cruel and unusual punishment in the circumstance.
We placed the burden of persuasion of unconstitutionality upon the defendant by a preponderance of the evidence. See State v. Stanley, 149 N.J. Super. 326, 328-329 (App.Div.), certif. den. 75 N.J. 21 (1977).
The judge reached the same conclusion following a hearing and the State again appealed. We must now consider if the record supports the finding that the Graves Act, as applied to this defendant, amounted to cruel and unusual punishment in violation of the New Jersey and the federal constitutions. See State v. Des Marets, 92 N.J. 62, 82 (1983); N.J. Const. (1947) Art. I, par. 12; U.S. Const., Amend. VIII. In considering this claim we must inquire whether the nature of the punishment is grossly disproportionate to the offense and goes beyond any legitimate penal goal so as to shock the general conscience and violate principles of fundamental fairness. Des Marets, 92 N.J. at 82. Absent such a showing we must respect the legislative will.
We consider the offense most serious. Defendant undertook to engage in distribution of cocaine. He provided money ($5,000) to aid in the establishment of the enterprise and armed himself to protect his interests. He turned on the society that he had been entrusted to protect as a police officer. See In the Matter of Coruzzi, 98 N.J. 77 at 79 (1984). Under ordinary circumstances a three-year minimum term with a maximum of seven years would be most appropriate for punishment and for general and special deterrent purposes. The question here is whether the circumstances of defendant's illness and problems of his personal security within the prison system are so extreme as to constitutionally mandate a judicial exemption from the legislative will. With deference to the considered and thoughtful decision of the Law Division judge, we think an exemption was uncalled for in this case.
At the hearing defendant's witness, Dr. Lewinter, a Board Certified internist, testified that defendant's condition of migratory thrombophlebitis was controllable by an anti-coagulant, Coumadin, but was not curable. It is a rare condition of unknown etiology. Defendant's application for medical retirement
because of this disease had been pending at the time of his arrest, when he was on medical leave. Slight trauma presented serious risk either due to hemorrhage or clotting, depending on the blood-thinning process, which could be fatal, or severely disabling. Dr. Lewinter said that defendant was able to participate in physical activities such as walking, swimming and driving an automobile. He was aware of defendant's participation in body-building and weight-lifting and advised against it, but believed it was not a critical point. Defendant's other physician, Dr. Wessler, apparently thought this activity was suitable, at least according to defendant. Dr. Lewinter himself had no first-hand knowledge of specific medical facilities in our State's correctional facilities. He thought that if defendant "goes to prison, given his condition, he's going to get killed."
The State produced two witnesses, Gary Hilton, the Assistant Commissioner of the Department of Corrections, and Allan Koenigsfest, Health and Service Coordinator for the Department. Hilton testified that because of defendant's mandatory minimum sentence of three years he "would have to remain -- absent a variance, would have to remain in a closed setting for one-half of the stipulated minimum or one-and-one-half years, and then assuming no other objections, it would probably be reduced to minimum custody and placed in a minimum camp-type of situation." In the event protective custody was indicated, defendant would be placed in a maximum security facility, most likely the new wing of the Trenton State Prison. Some ...