State v. Tumbiolo, A--676

• Decision Date: 09 November 1953
• Docket Number: No. A--676,A--676
• Citation: 28 N.J.Super. 231,100 A.2d 496
• Parties: STATE v. TUMBIOLO. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 231

28 N.J.Super. 231

100 A.2d 496

STATE v. TUMBIOLO.

No. A--676.

Superior Court of New Jersey.

Appellate Division.

Submitted Nov. 2, 1953.

Decided Nov. 9, 1953.

Albert Tumbiolo, pro se.

Donald G. Collester, County Prosecutor of Passaic County, Clifton, attorney for respondent.

Before Judges CLAPP, GOLDMANN and EWART.

The opinion of the court was delivered by

EWART, J.A.D.

Defendant Albert Tumbiolo, now confined in State Prison, appeals from corrected sentences imposed upon him by the Passaic County Court on June 26, 1953.

He has filed an original brief and also a reply brief, but has ignored his obligation under the rules to supply the court with an appendix containing records of the proceedings below necessary for this court to pass upon the appeal. The appeal might be dismissed for defendant's failure to comply with the rules. However, we have obtained certified copies of the indictments, together with a transcript of the court proceedings at the time the sentences were imposed upon the defendant, and we will dispose of the matter on its merits.

On November 15, 1949 the Passaic County Grand Jury found three indictments against the defendant, numbered respectively 513, 514 and 515.

Indictment No. 513 charged the defendant, along with others therein named, with having conspired on October 24, 1949 to commit a crime, viz., to commit an assault upon Eugene Lamont Pometti in the latter's residence at Paterson, N.J., and to steal and carry away by force from the person of the said Pometti money and personal property, contrary to the provisions of R.S. 2:119--1 and R.S. 2:166--1.

Indictment No. 514 charged that the defendant and others therein named did on October 28, 1949 commit an assault upon the person of the said Pometti in the latter's home in the City of Paterson and did forcibly steal and take from the person of the said Pometti $52 in currency and two diamond rings, of the aggregate value of $2,552, and the said indictment No. 514 further charged that the defendant was then and there armed with and had in his possession a certain firearm, to wit, a revolver, in violation of R.S. 2:166--1 and R.S. 2:176--5.

Indictment No. 515 charged that the defendant on October 28, 1949 in the City of Paterson did unlawfully carry concealed on and about his person and clothes a certain firearm, to wit, a revolver, without having first obtained a requisite permit to carry the same, in violation of R.S. 2:176--41.

Defendant was arraigned on these charges November 17, 1949, was represented by counsel, and entered pleas of not guilty to each of the three indictments.

January 9, 1950 defendant was brought into court, was represented by counsel, retracted his plea of not guilty to indictment No. 514 and entered a plea of Non vult. February 3, 1950 was set as the date for the imposition of sentence.

February 3, 1950 the court imposed upon defendant on indictment No. 514, to which he had pleaded Non vult, a sentence of not more than 20 years and not less than 15 years in State Prison.

On the same date defendant retracted his pleas of not guilty to indictments Nos. 513 and 515 and entered pleas of Non vult as to each indictment, and the court than imposed upon him a sentence of not more than three nor less than one year in State Prison on each of the two indictments last named, the sentences to run concurrently with the sentence imposed on indictment No. 514.

On or about October 16, 1952, defendant addressed a communication to the Judge of the Passaic County Court who had imposed the sentences upon him requesting a correction of an alleged illegal sentence in that the court had improperly lumped together the sentences on indictment No. 514 for a violation of R.S. 2:166--1 and R.S. 2:176--5. As a result of that communication, defendant was again brought before the Passaic County Court on June 26, 1953 pursuant to Rule 2:7--13 (R.R. 3:7--13) and re-sentenced as follows:

On indictment No. 514 the court imposed a sentence of not more than 15 nor less than 14 years in State Prison for violation of R.S. 2:166--1 and an additional sentence under R.S. 2:176--5 of not more than five nor less than one year, to run consecutively with the first sentence above mentioned.

On indictment No. 513 the court imposed a sentence of not more than three nor less than one year in State Prison, to run concurrently with the sentence imposed under indictment No. 514.

On indictment No. 515 the court imposed a sentence of not more than three nor less than one year, to run concurrently with the sentence imposed under indictment No. 514.

On this appeal defendant contends: (1) that the original sentence imposed upon him under indictment No. 514 on February 3, 1950 of not more than 20 nor less than 15 years was for a violation of the provisions of R.S. 2:166--1; that nothing was said about a further punishment being imposed for violation of R.S. 2:176--5; that it was only upon being re-sentenced on June 26, 1953 that he learned that the court had originally intended the sentence under indictment No. 514 to cover both violations of R.S. 2:166--1 and of R.S. 2:176--5, to run consecutively, and that the court had no right on June 26, 1953 in imposing a corrected sentence, to sentence him to a maximum of more than 15 years, and (2) that although he pleaded Non vult to indictment No. 515 charging him with carrying concealed weapons, nevertheless that offense was necessarily included in indictment No. 514 which dealt with the commission of a robbery while armed with a revolver and that, therefore, he has been subjected to double jeopardy in violation of his constitutional rights; that he has now completed service of the one- to three-year sentence imposed for carrying concealed weapons under indictment No. 515, which sentence was to run concurrently with the longer sentence imposed under indictment No. 514; and that, therefore, the court had no right on re-sentencing him under indictment No. 514 to impose a further penalty of from one to five years under R.S. 2:176--5 because he had already completed the service of his sentence imposed for carrying concealed weapons under indictment No. 515. Thus he claims he was subjected to double jeopardy contrary to the law enunciated in State v. Cooper, 13 N.J.L. 361 (Sup.Ct.1833).

We deal with these contentions of defendant as follows:

First, with respect to the original sentence of not less than 15 nor more than 20 years imposed upon defendant under indictment No. 514: R.S. 2:166--1 named in indictment No. 514 and to which defendant pleaded Non vult, authorizes the imposition of a fine or imprisonment not exceeding 15 years, or both. And R.S. 2:176--5, likewise named in indictment No. 514, provides in substance that a person who shall commit a robbery or larceny 'when armed with or having in his possession any revolver, * * * shall, in addition to the punishment provided for the crime, be punished on a first conviction by imprisonment for not more than five years; * * *,' but that 'no such additional punishment shall be imposed unless the indictment shall have averred that the person was armed with or had in his possession any such instrument and conviction was had thereon.' Indictment No. 514 against the defendant and two others, after charging the defendants with the crime denounced in R.S. 2:166--1, concludes with the statement, under R.S. 2:176--5, that:

'* * * the said Albert Tumbiolo, ...