On appeal from Superior Court of New Jersey, Law Division, Ocean County.
Morton I. Greenberg and J. H. Coleman. The opinion of the court was delivered by Coleman, J.h., J.A.D.
The novel question raised in the appeal filed by the State is whether bail pending an appeal by the State pursuant to N.J.S.A. 2C:44-1f(2) must be fixed simultaneously with the granting of a stay of the sentence. For the reasons which follow, we hold that where a defendant has been unable to post bail or whose bail has been revoked prior to sentencing, a stay of the sentence to permit the State to appeal requires the judge to set bail immediately after sentencing the defendant. Here, the bail was not set for 13 days following imposition of sentence. The State's appeal must therefore be dismissed.
Defendants pleaded guilty to six counts of a State Grand Jury Indictment, to wit: second degree theft by deception,
contrary to N.J.S.A. 2C:20-4; conspiracy, contrary to N.J.S.A. 2C:5-2; promoting gambling, contrary to N.J.S.A. 2C:37-2; possession of gambling records, contrary to N.J.S.A. 2C:37-3, and two counts of making gifts to members of the New Jersey State Police, contrary to N.J.S.A. 2C:27-6b. Each defendant was sentenced to concurrent five year probationary terms and as a condition of probation required to serve 364 days in the Ocean County Jail. Each defendant was also required to serve 400 hours of community service. Lois Sanders was fined $15,000 on the theft offense. Donald Sanders was fined $30,000 on the same count. The State has appealed and contends that the sentences are illegal.
Both defendants have cross appealed contending that:
1. THE STATE IS PRECLUDED FROM APPEALING DEFENDANTS' SENTENCES BECAUSE IT FAILED TO COMPLY WITH THE PROVISIONS OF N.J.S.A. 2C:44-1f(2) and R. 2:9-3(d) IN VIOLATION OF THE DOUBLE JEOPARDY PROVISIONS OF THE UNITED STATES CONSTITUTION AND THE CONSTITUTION OF THE STATE OF NEW JERSEY.
2. DEFENDANTS' CUSTODIAL SENTENCES ARE LEGAL AND APPROPRIATE AND SHOULD BE AFFIRMED BY THIS COURT.
3. THE FINE IMPOSED ON [EACH] DEFENDANT MUST BE VACATED SINCE NO FINDING WAS MADE AS TO DEFENDANTS' ABILITY TO PAY, IN VIOLATION OF N.J.S.A. 2C:44-2c.
Prior to the entry of the retraxit pleas of guilty on June 11, 1985, defendants had been detained in the Ocean County Jail for failure to post bail. The following facts undergird the guilty pleas. In late 1980, Lois Sanders and her son Donald Sanders, arrived in New Jersey from California with the intention of establishing a "pyramid" scheme to defraud innocent investors of their money. Defendants located their operation in the Atlantic City area. They had successfully utilized similar schemes in the Los Angeles area. In furtherance of their scheme, defendants created Co-Op Investments (Co-Op) and issued statements alleging that Co-Op was a safe and secure investment program with minimal risks to investors. Interested
investors were assured that an initial investment of $650 would purchase a position at the bottom of the pyramid with an excellent opportunity to advance to the top of the pyramid where a $35,000 pay-off was possible. In order to induce participation in the scheme, defendants falsely claimed that a number of charitable organizations were planning to invest in Co-Op. To further create the appearance of legitimacy, defendants publicized the fact that prominent local individuals were investing in Co-Op. They also ...