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State v. E.R.

Decided. As Corrected June 23 1994.: May 11, 1994.


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

Before Judges Pressler, Brochin and Kleiner.


The opinion of the court was delivered by

KLEINER, J.S.C. (temporarily assigned).

On December 14, 1993, an amended judgment of conviction was imposed upon defendant, E.R., for two second degree crimes. By the terms of the amended judgment, the original judgment of conviction executed by the court on August 1, 1993 was vacated and defendant was resentenced to probation for a term of five years conditioned upon requirements that he report to probation by telephone and that he remain at his home at all times unless excused by order of the court or while visiting a hospital or doctor for medical treatment.*fn1

The State contends the amended sentence violates the presumption of imprisonment for crimes of the first or second degree, N.J.S.A. 2C:44-1d, as interpreted in State v. Jabbour, 118 N.J. 1, 570 A.2d 391 (1990). Additionally it argues that the imposition of

any amended sentence was procedurally barred by the time constraints delineated in R. 3:21-10(a).

In this appeal we are called upon to determine whether a defendant with an uncontradicted prognosis of imminent death within six months due to an active disease process may be considered "idiosyncratic" so as "to forestall the deterrent effect of incarceration." We conclude that under the facts of this case, the defendant's medical status was appropriately considered by the sentencing Judge and his discretionary decision to impose probation rather than incarceration was appropriate. State v. Jabbour, id. at 7; State v. Roth, 95 N.J. 334, 358, 471 A.2d 370 (1984). We also conclude that the imposition of an amended sentence did not violate R. 3:21-10(a). We therefore affirm.

Defendant was indicted for the following offenses: second degree possession for an unlawful purpose of destructive devices, described as four pipe bombs, contrary to N.J.S.A. 2C:39-4c (count one); third degree possession of a prohibited device described as four pipe bombs, contrary to N.J.S.A. 2C:39-3a (count two); second degree possession of cocaine with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) (count three); and third degree possession of cocaine, contrary to N.J.S.A. 2C:35-10a(1) (count four).

Pursuant to a plea agreement in which the State agreed to dismiss counts two and four and a related disorderly persons offense and to recommend a sentence of eight years imprisonment, defendant on May 10, 1993 entered a plea of guilty to counts one and three of the indictment. On July 2, 1993, the trial Judge sentenced defendant to a seven year custodial term without a period of parole disqualification on count one and a similar sentence on count three to be served concurrently with the sentence imposed on count one. The judgment of conviction was executed by the trial Judge on August 1, 1993.

On August 31, 1993, defendant hand delivered to the trial Judge a motion for reconsideration of sentence returnable before the court on September 24, 1993, seeking a reduction of sentence or

alternatively, the elimination of the custodial sentence originally imposed.

R. 3:21-10 permits a reduction or change of sentence in certain circumstances. Pertinent to this appeal are R. 3:21-10(a) and (b), which provide:

(a) Time. Except as provided in paragraph (b) hereof, a motion to reduce or change a sentence shall be filed not later than 60 days after the date of the judgment of conviction. The court may reduce or change a sentence, either on motion or on its own initiative, by order entered within 75 days from the date of the judgment of conviction and not thereafter.

(b) Exceptions. A motion may be filed and an order may be entered at any time (1) changing a custodial sentence to permit entry of the defendant into a custodial or non-custodial treatment or rehabilitation program for drug or alcohol abuse, or (2) amending a custodial sentence to permit the release of a defendant because of illness or infirmity of the defendant or (3) changing a sentence for good cause shown upon the joint application of the defendant and prosecuting attorney, or (4) changing a sentence as authorized by the Code of Criminal Justice, or (5) changing a custodial sentence to permit entry into the Intensive Supervision Program.

The original sentence was imposed upon defendant on July 2, 1993, however, the judgment of conviction was signed on August 1, 1993. A judgment is only effective when signed by the Judge and entered by the clerk. R. 3:21-5; see also Pressler, Current N.J. Court Rules, comment on R. 3:21-5 (1994). Defendant's motion as filed was timely. R. 3:21-10(a). Although the clerk's office did not receive this motion for filing until September 10, 1993, defendant utilized the filing alternative embodied in R. 1:5-6(b) by delivery of the motion to the Judge's chambers.*fn2 In its appeal, the State also stresses as a procedural deficiency that the resentencing on December 14, 1993 was beyond the strict time limitation of seventy-five days imposed by R. 3:21-10(a). Ordinarily the time limitations of R. 3:21-10(a) must be strictly enforced,

State v. Edwards, 184 N.J. Super. 538, 541, 446 A.2d 1217 (App. Div. 1982); State v. Sanducci, 167 N.J. Super. 503, 511, 401 A.2d 274 (App. Div.), certif. denied, 82 N.J. 263 (1979); State v. Tully, 148 N.J. Super. 558, 562, 372 A.2d 1323 (App. Div.), certif. denied, 75 N.J. 9 (1977). and may not be enlarged, R. 1:3-4(c).

The procedural focus in this appeal is similar to the problem discussed in State v. Alvarado, 95 N.J. Super. 595, 232 A.2d 184 (App. Div. 1967), aff'd, 51 N.J. 376, 240 A.2d 677 (1968). Alvarado dealt with the predecessor to R. 3:21-10, formerly R.R. 3:7-13,*fn3 which in pertinent part provided, "The court may reduce or change a sentence by order entered not later than 60 days from the date of the judgment of conviction. . . ." Alvarado was sentenced on June 27, 1966. He filed a timely motion for reduction of sentence on August 22, 1966, returnable August 26, 1966. However, the sentencing Judge was on vacation until September 12, 1966 and the motion was carried by the assignment Judge until September 16, 1966. The sentencing Judge then denied the ...

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