On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 578-80.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 24, 2011
Before Judges Sabatino and Ashrafi.
Defendant Musa Shihadeh appeals from a September 3, 2010 order denying his motion to be released from prison because he is now elderly and ill. We affirm.
In 1982, a jury in Ocean County convicted defendant of murder, N.J.S.A. 2C:11-3, and he was sentenced to life imprisonment with twenty-five years to be served before parole eligibility. The murder was committed because of a dispute about unlawful business dealings. Defendant and two accomplices lured the victim onto a boat, where defendant gave a signal to one of the accomplices to carry out the murder. The accomplice shot the victim three times in the back of the head, and the body was then dumped into Barnegat Bay.
After serving more than twenty-eight years of the prison sentence, defendant moved before the trial court in April 2010 for a modification of his sentence pursuant to Rule 3:21-10(b)(2). That rule provides that a custodial sentence may be amended "to permit the release of a defendant because of illness or infirmity." Defendant was eighty years old at the time he filed the motion. He submitted prison medical records to show that he suffers from anemia, constipation, arthritis, headaches, urinary tract infections, and gastro-intestinal bleeding. He stated he was taking medications and food supplements to treat his health problems, including Flomax, Prilosec, Meclizine, Metamucil, Celebrex, aspirin, and Ensure. He also attached a report of a psychologist who had recently interviewed him by video transmission and concluded that defendant was not competent to stand trial for a second murder charge dating to 1973.
That charge had been dismissed many years ago because a crucial witness had died, but the Bergen County Prosecutor's Office had re-charged defendant in 2007 after finding a new witness. A psychologist for the State also evaluated defendant and concluded that he is mentally competent to stand trial on the new murder charge.
In a written opinion, Judge Wendel Daniels concluded that the documentary evidence presented by defendant did not show he was suffering from a life-threatening illness and that prison authorities were able to treat defendant's medical conditions, mostly with over-the-counter medications. Taking into account the seriousness of the crime for which defendant was serving a sentence of life imprisonment, the judge denied defendant's motion to be released from prison.
On appeal, defendant argues:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A CHANGE OF CUSTODY UNDER THE CIRCUMSTANCES WITHOUT A HEARING OR EVEN ORAL ARGUMENT.
A hearing is not always required to address a motion for amendment of sentence under Rule 3:21-10(b)(2). The rule states:
A motion filed pursuant to paragraph (b) hereof shall be accompanied by supporting affidavits and such other documents and papers as set forth the basis for the relief sought. A hearing need not be conducted on a motion filed under paragraph (b) hereof unless the court, after review of the material submitted with ...