State v. Monaco
| Decision Date | 02 March 1979 |
| Citation | 166 N.J.Super. 435,400 A.2d 74 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Andrew MONACO, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
H. Richard Chattman, Asst. Deputy Public Defender, for defendant-appellant (Stanley C. Van Ness, Public Defender, attorney; H. Richard Chattman, on the letter brief).
Edwin H. Stern, Deputy Atty. Gen., Div. of Crim. Justice, Dept. of Law and Public Safety, for plaintiff-respondent (John J. Degnan, Atty. Gen., attorney; Larry R. Etzweiler, Deputy Atty. Gen., of counsel and on the letter brief).
Before Judges MATTHEWS and MILMED.
The opinion of the court was delivered by
MILMED, J. A. D.
On this appeal defendant complains of portions of certain of the sentences imposed upon him following his Retraxit pleas of guilty to ten counts of breaking and entering with intent to steal (N.J.S.A. 2A:94-1) and nine counts of larceny of property having a value in excess of $500 (N.J.S.A. 2A: 119-2). 1 In the letter brief submitted on defendant's behalf, counsel points out that:
On May 6, 1977, Judge Egan sentenced defendant, on the first count of Indictment No. 200-76-S, for breaking and entering, to an indeterminate term at the Youth Correctional Institution Complex, and on the second count for larceny, to a consecutive but suspended State Prison term of three to five years, with a consecutive five year probationary period conditioned on completion of an eighteen month in-patient drug rehabilitation program at Integrity House or a similar facility. * * * On the first count of Indictment 202-76-S, charging breaking and entering, defendant was sentenced to a consecutive but suspended State Prison term of two to three years, and a Consecutive five year probationary term, conditioned on completion of an in-patient drug treatment program, was imposed. * * * On each of the eight remaining counts of larceny, defendant was sentenced to a consecutive but suspended State Prison term of three to five years, and on each of the eight remaining counts for breaking and entering, consecutive but suspended State Prison terms of two to three years were imposed. * * * On each one of these sixteen suspended sentences, a concurrent five year probationary period, on the same condition previously specified, was imposed. * * *
On June 24, 1977, at the conclusion of a hearing on defendant's motion for a reduction or modification of the sentence, the motion was denied by Judge Egan. * * * 2
On March 31, 1978, defendant was paroled from the indeterminate term at the Youth Complex. By an order entered in June, 1978, and pursuant to R. 2:9-3(c), Judge Egan granted defendant's motion to stay, pending the outcome of this appeal, the operation of the special condition of defendant's probation which requires him to attend an in-patient drug treatment program. 3
Defendant argues that:
(1) the second, consecutive five year probationary period is illegal and excessive; and (2) the in-patient drug treatment program, made a condition of the probationary periods, is unreasonable, unwarranted and inappropriate.
We disagree. From our review of the record submitted on the appeal we are satisfied that, in the circumstances, the trial judge properly imposed the second consecutive five-year period of probation as well as the special condition of probation, Viz., that defendant complete an in-patient drug rehabilitation program.
After imposing the sentences the trial judge, addressing defendant, noted:
To sum it up, Mr. Monaco, the (e)ffect of this sentence is basically I think one, to give you the opportunity to fish or cut bait from here on in for a long string of B & Es. Your cooperation has gained you what I think is great consideration, and that is, that in effect you will be serving a relatively minimal term in custody for these offenses so long as you become drug free, so long as you remain free of any further problems or violations of probation, because the (e)ffect of it is that unless you get in trouble again, unless you are uncooperative with probation, unless you go back to drugs, then all you have to serve is the indeterminate sentence in Yardville.
On the other hand, if you are unable to kick the drug habit, if you do not complete the program at Integrity House after getting out of Yardville, if you get into any more trouble, what is hanging over your head, and if I have anything to do with it, what will be imposed is sentences, if my arithmetic is correct and at this point I can't guarantee it, of consecutive sentences of not less than 45 nor more than 75 years. For all practical purposes, the key to the jail in the future is in your hands. The reason for the sentences that will be incorporated in the judgment of conviction is that the sheer magnitude of all these offenses just about staggers the imagination. They're clearly the result of drug addiction which did grow in fact beyond your control.
A custodial term, however, is needed immediately, not after Integrity House. It is needed immediately to deter you and anyone else who may be similarly inclined to let you and anyone else see what lies ahead if they violate probation, namely, that is, that the balance of the suspended sentence will have to be served.
Long probation, and I've made it long, with inpatient drug treatment is intended to (e)ffect rehabilitation for you. And frankly, despite the fact that you've been a pretty bad actor, nothing would make me happier than to think you can go from that hundred dollars a day habit down to zero and that you would never touch any kind of narcotic, and...
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... ... In the State's view, had the Legislature intended to also exclude federal prisoners, it could have explicitly done so. See State v. Monaco, 166 N.J.Super. 435, 440, 400 A.2d 74 (App.Div.1979); State v. Horton, supra, 45 N.J.Super. at 48, 131 A.2d 425 ... The fact that N.J.S.A. 30:4-147 expressly mentions only State Prison, either in New Jersey or in another State, could be construed to exclude application to Federal ... ...
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...McCann, 236 A.D. 146, 258 N.Y.S. 324 (N.Y.App.1932), aff'd per curiam, 261 N.Y. 606, 185 N.E. 758 (1933). But see State v. Monaco, 166 N.J.Super. 435, 400 A.2d 74 (App.1979). In Oliver v. State, supra, we noted the similarity of Art. 27, § 641A to 18 U.S.C. § 3651 and held that consecutive ......
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...conditions not explicitly listed in the statute. See State v. Bausch, 83 N.J. 425, 433, 416 A.2d 833 (1980). State v. Monaco, 166 N.J.Super. 435, 400 A.2d 74 (App.Div.1979) provides one example of the discretionary imposition of a condition of probation not specified in the statute. In Mona......