On appeal from the Superior Court of New Jersey, Law Division, Essex County.
The State appeals from an order granting defendant's application for a change in sentence pursuant to R. 3:21-10(b)(2) because he is suffering from Acquired Immune Deficiency Syndrome (AIDS). We reverse.
Defendant, Keaston Wright, is 39 years old and apparently contracted AIDS as a result of his use of a contaminated hypodermic syringe in connection with his addiction to drugs. His present incarceration stems from his involvement in the armed robbery of one William Jones on July 7, 1984. At that time Wright was with two codefendants, Charles Beverly and Sheila McEntyre and held a razor to the victim's throat robbing him of some $183. All three codefendants were indicted for first degree robbery, aggravated assault, possession of a weapon for an unlawful purpose, and unlawful possession of a weapon. On February 28, 1986 pursuant to a plea agreement, Wright entered a plea of guilty to first degree robbery contrary to N.J.S.A. 2C:15-1 and possession of a weapon for an unlawful purpose contrary to N.J.S.A. 2C:39-4d. The remaining two
counts were to be dismissed, defendant was to be sentenced on the basis of a second degree offense and the aggregate sentence was not to exceed six years with a two year period of parole ineligibility.
The presentence investigation report (PSI) relied upon by the sentencing judge noted that Wright had previously been arrested both as a juvenile as well as an adult, with six prior convictions, three of which were for indictable offenses. In 1969 defendant was convicted for unlawful sale of a controlled dangerous substance and received a three year probationary sentence. In 1976 he was sentenced to an indeterminate term to Yardville based on his commission of an armed robbery in 1971. Similarly, in 1981 he was sentenced to 364 days incarceration for a robbery committed in 1978. The disorderly persons convictions reflected his extensive and prolonged illegal use of drugs.
The PSI also noted that defendant claimed to be in "poor health" having suffered from "pneumonia, low white blood cell count, respiratory problems, high blood pressure, anemia, sinus bleeding and narcolepsy." He had previously been in a drug program at DANA Clinic and the Veterans Administration Hospital as well as on methadone maintenance. The PSI also indicated that defendant had been married twice and separated from his second wife since 1978. He had three (or four) children "with whom he has little or no contact."
On April 11, 1986 Judge Charles E. Villanueva consummated the plea agreement by sentencing defendant to six years imprisonment with a two year period of parole ineligibility. The imposition of this sentence resulted from an assessment of defendant's prior record as well as the need for punishment and deterrence. Based on the jail credits awarded for his pretrial confinement, defendant is eligible for parole consideration in early December, 1987.
On August 14, 1987 defendant moved for a "reduction of sentence." Since Judge Villanueva was no longer assigned to
hear criminal matters, the motion was heard by another judge. In support of the application defendant offered hospital records of treatment rendered during his confinement, a letter from the prison system's Health Services Coordinator and one from the Assistant Supervisor of the Health Services Unit, a letter from a psychologist, Dr. Harvey Musikoff, who has been "working with" defendant at the prison and a letter from Father Dennis O'Brien, an Institutional Chaplain at the prison. The State presented no evidence but vigorously opposed the application. However, the State conceded that while incarcerated, defendant "has conquered his drug addiction and organized his own anti-drug campaign."
The "hearing," which was initially conducted on August 28, 1987, consisted only of the oral arguments of counsel and comments and conjectures about the nature and course of the AIDS disease. The trial judge indicated clearly that he was inclined to grant relief but continued the matter pending submission of a specific proposal indicating the terms and conditions which would govern defendant's release from prison. Thereafter, additional information detailing defendant's involvement in and commitment to, the anti-drug campaign was supplied. The "hearing" was reconvened on October 6, 1987 at which time the judge signed an order which "reduced" the prior sentence to two (2) years probation ...