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State v. Morrissey

January 19, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ROBERT L. MORRISSEY, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, No. I-08-06-01047.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 15, 2009

Before Judges Wefing and Messano.

Defendant appeals, pursuant to leave granted, from an order entered by the trial judge denying his request to postpone his sentencing. After reviewing the record in light of the contentions advanced on appeal, we reverse.

Defendant was indicted under a twelve-count indictment charging him with two counts of aggravated sexual assault, N.J.S.A. 2C:14-2a; one count of sexual assault, N.J.S.A. 2C:14-2c; four counts of sexual assault, N.J.S.A. 2C:14-2b; and five counts of endangering the welfare of a child, N.J.S.A. 2C:24-4a. The indictment named four victims: N.S., D.S., K.A. and M.M.

The counts were severed for purposes of trial; those counts alleging offenses against N.S. and D.S. were tried in January 2009, and defendant was found guilty on all charges, specifically of one count of aggravated sexual assault, two counts of sexual assault, and two counts of endangering the welfare of a minor.

Defendant appeared before the trial judge in May 2009 in connection with a motion relating to the remaining counts and to request that his sentencing be postponed until the trial of the remaining counts. The State submitted on the question, and the trial judge did not immediately decide the matter.

The question was renewed in July. Defense counsel argued that it was unfair to his client to proceed to sentencing on these counts until the remaining counts were resolved. He noted that his client would be required to be evaluated at the Adult Diagnostic and Treatment Center at Avenel before he could be sentenced and that his ability to participate in that evaluation would be severely restricted because of the pending charges.

He also noted another potential prejudice. If defendant were to be convicted in separate proceedings and sentenced on separate dates to concurrent sentences, defendant would only be entitled to gap-time credits in computing the actual time to be served.

At this second argument, the State opposed defendant's request, noting that the victims wanted closure. The trial judge ultimately denied defendant's motion but gave no reasons for doing so; we note, however, that during the course of the argument, the trial judge said he wished to transfer the trial of the remaining counts to another judge for trial and that no other judge could sentence defendant on these counts since he had presided at the trial. We granted defendant's motion for leave to appeal.

We are satisfied that for reasons both of fairness to defendant and judicial economy, defendant's request should have been granted. If the matter were to proceed as the State requested and the trial judge concurred, and defendant were to be convicted at each of the subsequent proceedings, defendant would be sentenced three times, the remaining counts now being scheduled for separate trials for the two remaining victims.

This would involve the preparation of three separate presentence reports, and defendant would have the right to present three separate sentencing arguments, both to the trial court and on appeals to this court. Certain issues would undoubtedly overlap. We can perceive no sound reason to require such duplication of effort, either on the trial level or on this level. It is not required for reasons of safety; defendant is incarcerated, his bail ...


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