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State v. Verducci

Decided: February 20, 1985.


On appeal from the Superior Court of New Jersey, Law Division, Essex County.

Michels, Petrella and Baime.

Per Curiam

This is an appeal from an order entered by the Superior Court, Law Division reducing defendant's custodial sentence because of illness and releasing him pursuant to R. 3:21-10(b)(2). The trial judge's decision was based upon expert psychiatric testimony which disclosed a substantial likelihood that defendant would attempt to commit suicide were he to remain incarcerated. The State contends that defendant poses a substantial potential threat to the public and that the trial judge mistakenly exercised his discretion. We agree and reverse.

The salient facts are not in serious dispute. Defendant has an extensive record of delinquency both as a juvenile and as an adult. On July 21, 1978, defendant was sentenced to concurrent 12 month terms for atrocious assault and battery and obstruction of justice. Defendant subsequently escaped from the Essex County Corrections Center and was ultimately apprehended in Ohio. Upon his return to New Jersey, defendant entered pleas of guilty to assault with an offensive weapon and escape. For those offenses, defendant was sentenced to an aggregate term of not less than three nor more than five years in New Jersey State Prison. The sentences were to run consecutively to the custodial term remaining on the prior charges. Defendant's motion for a reduction of sentence was subsequently granted and he was placed on probation.

The offenses which are the subject of this appeal were committed while defendant was under probationary supervision. On April 3, 1980, defendant forcibly entered Makar's Jewelry and Gift Shop and robbed the owner at gunpoint. Although the record pertaining to this offense is somewhat sketchy, it is undisputed that defendant fired a shot at the victim narrowly

missing him during the course of the robbery. The record reflects that defendant threatened to kill the victim and made off with approximately $30,000 worth of gold jewelry and $1000 in cash.

Defendant ultimately entered pleas of guilty to first degree robbery (N.J.S.A. 2C:15-1) and unlawful possession of a handgun (N.J.S.A. 2C:39-5b). Defendant also pleaded guilty to a separate indictment charging him with theft by receiving stolen property (N.J.S.A. 2C:20-7) and unlawful possession of a firearm (N.J.S.A. 2C:39-5b). While awaiting disposition of charges pertaining to his violation of probation, defendant escaped from the holding cell adjacent to the courtroom and fled to Florida where he was ultimately apprehended after committing the crime of grand theft.

On March 26, 1982, defendant was sentenced to an aggregate custodial term of 15 years. Under the sentences imposed, defendant was to serve a term of four years before being eligible for parole. Unfortunately, the record discloses that defendant has abjectly refused to comply with prison rules from the very commencement of his incarceration. His encounters with prison officials need not be recounted at length. Suffice it to say, defendant's derelictions have been substantial and include possession of a weapon, abusive conduct, fighting and attempted escape. It is undisputed that defendant's misbehavior has resulted in his being placed in administrative segregation for the greater part of his incarceration.

The record clearly reveals defendant's apparent inability to cope with the realities of prison life. Uncontradicted evidence was presented that defendant made a serious attempt at suicide and came perilously close to succeeding. Apparently, this problem is not of recent vintage. The record reflects that defendant made a similar attempt several years ago when he was incarcerated for another offense. Whatever its etiology, it is beyond dispute that the risk of suicide is real.

On December 10, 1984, defendant moved for a reduction of sentence pursuant to R. 3:21-10(b)(2). Defendant contended that he suffered from a mental disease or emotional illness which rendered him incapable of conforming to prison life. It was alleged that defendant presented a major suicidal risk. In support of that claim, Dr. Thomas Latimer, a psychiatrist, testified that defendant was a "prime candidate" for suicide because of his "severe" psychiatric problems. While acknowledging that defendant was not "actively psychotic" and was neither "delusional" nor "paranoid," the witness ascribed his past misbehavior to a "basic immaturity." According to Dr. Latimer, defendant's illness precluded him from being able to "conform his conduct [to prison rules], to take life seriously [and] to obey the law [and] respect others." Continued administrative segregation over a lengthy period of time had seriously impaired defendant's will to live within the confines of the prison environment. The doctor noted that treatment within the prison system was insufficient and that defendant would benefit from intensive psychotherapy. According to Dr. Latimer, releasing defendant from administrative segregation and placing him in the general prison population might prove beneficial, but it could "increase his suicidal tendencies."

Dr. Steven S. Simring, a psychiatrist, testified on behalf of the State. According to his testimony, "defendant did not suffer from a significant psychiatric illness." Specifically, defendant did not "show psychotic symptomology" in that he did not harbor hallucinations or delusions. Nevertheless, the doctor noted that defendant had "serious psychiatric difficulties" and that he suffered from an "antisocial personality disorder." The witness testified that defendant presented a danger to society because of his "gross immaturity." Dr. Simring stated that defendant could be treated at facilities within the ...

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