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State v. Bianco

Decided: July 7, 1986.


On certification to the Superior Court, Appellate Division, whose opinion is reported at 205 N.J. Super. 462 (1985).

For affirmance -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For reversal -- None. The opinion of the Court was delivered by Garibaldi, J.


The sole issue presented in this appeal is whether the four-month Pilot Program of the Appellate Division's Excessive Sentence Oral Argument Program (ESOA Program) was constitutional. Specifically, defendant-appellant contends that his mandatory participation in the Pilot Program violated his federal and state constitutional rights to due process and to equal protection of the law. Petitioner concedes that as presently constituted the ESOA Program is constitutional.


Gary Bianco, the defendant, and his mother, Nancy Bianco, each were charged with two counts of conspiracy to commit robbery (N.J.S.A. 2C:5-2) and two counts of first-degree robbery (N.J.S.A. 2C:15-1). The charges stemmed from their abduction of a fifty nine-year-old woman from a supermarket parking lot in Hudson County. The defendant drove the victim several blocks away and then released her after robbing her of $330. On June 20, 1983, following plea negotiations, Gary Bianco entered a retraxit plea of guilty to first-degree robbery in exchange for the State's agreement to recommend dismissal of the remaining counts of the indictment and to recommend that any sentence imposed be concurrent with another sentence that the defendant was to serve in Essex County.*fn1 On July 27, 1983, the trial court sentenced the defendant to New Jersey State Prison for a twenty-year term with a ten-year period of parole ineligibility. This sentence was concurrent, but not coterminous, with his sentence imposed in Essex County. He also was ordered to pay a penalty of $25 to the Violent Crimes Compensation Board. The court dismissed the remaining counts of the indictment.

The defendant appealed on September 19, 1983, challenging the length of his sentence. On April 6, 1984, a two-judge panel of the Appellate Division heard this appeal as part of the ESOA Pilot Program. The appeal was argued orally. There were no written briefs submitted and the argument was not sound recorded or transcribed. The court affirmed defendant's conviction and sentence.

We granted defendant's petition for certification, 99 N.J. 191 (1985), and summarily remanded the case to the Appellate Division for "consideration of defendant's argument that he was denied equal protection and due process of law by reason that his appeal was heard as part of the excessive sentence oral argument program."

After oral argument, but without benefit of briefs, the Appellate Division issued a per curiam opinion, 205 N.J. Super. 462 (1985), affirming Bianco's conviction and holding that the ESOA Program did not violate defendant's state and federal constitutional rights to due process and to equal protection. The defendant filed a Petition for Certification as well as a pro se Notice of Appeal as of Right pursuant to Rule 2:2-1(a). The latter was limited in scope to the allegedly disparate*fn2 and excessive sentence he received. We again granted certification, 102 N.J. 342 (1985), limited solely to the constitutionality of the excessive sentence program, and we now affirm the judgment of the Appellate Division.


The ESOA Program was the result of the Appellate Division's growing concern about the mounting backlog and delays -- sometimes up to four years -- in the processing and perfecting of criminal appeals. The very real fear was that some defendants might fully serve an illegal or excessive sentence before the sentence was subject to appellate review. To study the problem, this Court created an experimental five-judge criminal part of the Appellate Division to hear all criminal appeals for the 1983-84 court year and established a Criminal Appeals Expediting Committee. An examination of pending criminal appeals disclosed that there was an inventory of at least 568 cases, in which the sole issue was excessiveness of sentence, and that some of these cases were three or four years old. Moreover, it appeared that the backlog was due mainly to the inability of the Public Defender to file briefs because of personnel and budget limitations. Discussion among members of the Committee and other judges, as well as visits to two other states that had adopted expedited criminal appeals procedures,*fn3 resulted in a proposal that excessive sentence appeals be identified and placed on an oral argument calendar, without the benefit of briefs, for summary disposition.

Although only two other states have dispensed with briefs, a number of commentators have embraced the idea of briefless appeals. See P. Carrington, D. Meador & M. Rosenberg, Justice on Appeal 27 (1976).*fn4

Similarly, the American Bar Association (ABA) has suggested a number of procedural devices for reducing the delay resulting from the dramatic rise in criminal appeals, including the elimination of briefs. American Bar Association, Criminal Appeals § 21-3.1 (1978). The ABA believes that it is desirable to handle appeals through procedures that vary depending on the complexity of the case so long as the appellate panel is informed of the facts, understands the arguments of the party, and collegially reaches a reasoned conclusion. Id. § 21-3.4.

On March 22, 1984, the Court entered an Order relaxing Rules 2:6-11(a) and 2:11-1 to permit oral argument without brief in excess sentence appeals. Further orders of the Court extended the program.

The ESOA Program was designed to minimize the need for support time from both the Public Defender and the Attorney General.*fn5 The vast majority of appeals that raise only questions of excessive sentencing are brought by indigents.*fn6 Prior to the initiation of the Program, a large number ...

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