On appeal from the Superior Court of New Jersey, Law Division, Cumberland County.
King, O'Brien and Simpson. The opinion of the court was delivered by King, P.J.A.D.
In this case defendant raises a double jeopardy issue after his resentencing pursuant to the doctrine announced in State v. Kovack, 91 N.J. 476, (1982). Defendant contends that (1) the sentencing judge had no jurisdiction to increase the sentence previously imposed upon him and (2) the increased sentence violated the Double Jeopardy clauses of the State and Federal constitutions. See State v. Lynch, 79 N.J. 327, 340 (1979). We disagree and affirm but will allow defendant to file an amended notice of appeal nunc pro tunc on the issue of excessiveness of his sentence, an issue not raised on this appeal to date. See generally State v. Yarbough, 100 N.J. 627 (1985) for a recent opinion on sentencing.
These are the facts. Cumberland County Indictment No. 182-80 charged defendant Taalib Din Naji with a series of offenses arising from three unrelated robberies. In Counts One, Two, Three and Four the victim was Sam Greco and
defendant was charged with robbery, N.J.S.A. 2C:15-1 (Count One); possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (Count Two); aggravated assault, N.J.S.A. 2C:12-1(b)(2) (Count Three) and unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (Count Four). In parallel Counts Five, Six, Seven and Eight the robbery victim was Michael Bianco; also in parallel Counts Nine, Ten, Eleven and Twelve the robbery victim was Keith Hundall. On March 13, 16 and 17, 1981 defendant was tried on Counts One through Four before Judge Kleiner and a jury and was found guilty on all four counts.
Pursuant to R. 3:21-4(d) the State filed a motion for imposition of an extended term. See N.J.S.A. 2C:44-3(a). At the hearing on April 15, 1981 the State agreed to withdraw the motion for the imposition of an extended term in exchange for defendant's agreement to enter guilty pleas to Counts Five through Twelve. Defendant then appeared before Judge Kleiner and pled guilty to Counts Five through Twelve.
Judge Kleiner sentenced defendant to a term of 20 years with a minimum parole ineligibility term of ten years on Count One, a concurrent term of four years on Count Two, a concurrent term of 18 months on Count Three, a concurrent term of four years on Count Four, a term of 20 years with a minimum parole ineligibility term of ten years on Count Five to run consecutively with Count One, terms of four years each on Counts Six, Seven and Eight to run concurrently with Count Five, a term of 20 years with a minimum parole ineligibility term of ten years on Count Nine to run consecutively with Count Five and terms of four years each on Counts Ten, Eleven and Twelve to run concurrently with Count Nine. Defendant's aggregate sentence thus was 60 years with a minimum parole ineligibility term of 30 years. Defendant appealed and in an opinion by another panel of this court issued on December 23, 1982 we agreed with defendant's Kovack contention and remanded the matter to the Law Division for further proceedings, (Docket No. A-4076-80T4).
Defendant then appeared before Judge Kleiner on February 14, 1983 for resentencing. He withdrew his guilty pleas on Counts Five through Twelve and the judge reinstated the State's motion for the application of an extended term. On May 12, 1983 the parties appeared before the judge for a hearing on the State's motion for an extended term. Differences then arose as to the interpretation of our decision. Judge Kleiner postponed consideration of the merits of the motion until defendant could pursue an interlocutory appeal. Defendant's motion for leave to appeal was denied by both this court and the Supreme Court.
On November 7, 1983 Judge Kleiner granted the State's motion for the imposition of an extended term and resentenced defendant on Counts One through Four. Defendant was sentenced to a term of life with a minimum parole ineligibility term of 25 years on Count One, a concurrent term of seven years on Count Two, four years concurrently on Count Three and 18 months concurrently on Count Four.
Trial on the remaining counts of the indictment involving the Bianco and Hundall robberies was scheduled for December 13, 1983. On that day defendant agreed to enter a bargained guilty plea and appeared before Judge Serata; he pled guilty to Count Nine of the indictment charging him with armed robbery.
On December 20, 1983 defendant filed this notice of appeal. This appeal encompasses only the first four counts of the indictment for which Judge Kleiner had imposed an aggregate life term with 25 years of parole ineligibility. On January 13, 1984 Judge Serata sentenced defendant on Count Nine to the agreed upon presumptive term of 15 years to run concurrent with and retroactive to the sentence imposed by Judge Kleiner. Pursuant to the plea ...