State v. Bianco

501 A.2d 528, 205 N.J. Super. 462, 1985 N.J. Super. LEXIS 1706
CourtNew Jersey Superior Court Appellate Division
DecidedJuly 15, 1985
StatusPublished
Cited by4 cases

This text of 501 A.2d 528 (State v. Bianco) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bianco, 501 A.2d 528, 205 N.J. Super. 462, 1985 N.J. Super. LEXIS 1706 (N.J. Ct. App. 1985).

Opinion

PER CURIAM.

Defendant was charged together with his mother, Nancy Bianco, with two counts of conspiracy to commit robbery (N.J.S.A. 2C:5-2) and two counts of first degree robbery (N.J.S.A. 2C:15-1).

Following plea negotiations, defendant entered a retraxit plea of guilty to one count of first degree robbery. The State agreed to move to dismiss the remaining counts and to recommend that any custodial sentence be concurrent but not coterminous with defendant’s Essex County sentences. The State also reserved the right to speak at sentencing. Defendant was questioned by the court to ascertain whether he understood the nature and consequences of his plea. He was specifically informed by the court of the custodial sentence, fines and penalties that could be imposed and that he could receive a period of parole ineligibility. Satisfied that the guilty plea was [466]*466knowing and voluntary and supported by a sufficient factual basis, the court accepted the plea.

Defendant was thereafter sentenced to a custodial term of 20 years with a 10 year period of parole ineligibility.1 This sentence was concurrent, but not coterminous, with his sentences imposed in Essex County.2 He also was ordered to pay a penalty of $25 to the Violent Crimes Compensation Board. The remaining counts of the indictment were dismissed by the court.

A notice of appeal was filed on defendant’s behalf and the appeal was argued before Judges Gaulkin and Shebell. An order was entered by the court affirming defendant’s judgment of conviction and sentence.

Defendant thereafter petitioned the Supreme Court for certification on the grounds that he was denied equal protection and due process of law because his appeal was heard as part of the Appellate Division’s Excessive Sentence Oral Argument Program (the Program) which was approved by order of the Supreme Court on March 22, 1984. The petition was granted and the cause was remanded to this court for consideration of the equal protection and due process arguments raised in the petition. 99 N.J. 191

I.

Defendant’s constitutional claims are based upon the following description of the Program which, he states, comes from the knowledge of his counsel and conversation with a staff attorney in the office of the Clerk of the Appellate Division.3

[467]*467c. THE PILOT PROJECT FOR EXCESSIVE SENTENCE APPEALS

The Pilot Project for Excessive Sentence Appeals is an experimental program established by court order to expedite the appeal of a sentence imposed pursuant to a plea agreement. The program accomplishes its objective by abbreviating the appellate review accorded an appeal in which excessiveness of sentence is the sole issue. Essentially, the program reduces an appeal to a limited oral presentation of argument. Appeals involving other issues or exceptionally lengthy sentences are exempt from the program and entitled to traditional appellate review. The program, which was designed to reduce the backlog of cases present within the Office of the Public Defender, applies exclusively to defendants with assigned counsel. It does not apply to defendants with private counsel.
The selection of cases for participation in the program is made randomly without reference to articulable standards. Ready cases are simply chosen by lottery without regard to age of case or other distinguishing factor. Since the inception of the program in March 1984, the practice of the Appellate Division has been to select 40 to 60 cases for disposition in a single day. The program has operated twice a month. Cases that are not chosen by the program are administered by the Public Defender according to the established practice of appellate procedure. A defendant is not allowed the option of withdrawing his appeal from the program once it is selected.
Prior to the hearing, the Appellate Division is provided with transcripts of the plea and sentencing hearings, the indictment, judgment of conviction and the presentence report. Counsel for the appellants are allowed to present oral argument to the court and are not permitted to submit written briefs. As a practical matter, the average argument lasts approximately five to ten minutes and the appeals are decided by the court in assembly-line fashion. The proceedings are neither recorded, nor transcribed. The court does not explicate its decision, but issues an order at a later date without a statement of reasons.
The procedure of appellate review afforded cases under the Pilot Project differs from the procedure accorded other appeals. Ordinarily, an appeal consists of the right to submit a written brief, to reply to the written argument of opposing counsel and to request oral argument. The Pilot Project reduces the right to appeal to a fleeting oral argument. The effect of the program is to deprive the defendant of the benefit of full appellate review, including, most importantly, a record of the proceedings, [footnote omitted]

In response to this description offered by defendant, we requested Wesley R. LaBar, Deputy Clerk of this court, to submit his certification detailing the genesis, design and operation of the Program. That certification, which has been filed as part of the record on this appeal, is set forth in full as an appendix to this opinion. It discloses that the Program was proposed only after intensive research and study. It came [468]*468about as a direct result of the creation and subsequent activity of the special five judge criminal panel of this court which was instituted in September 1984 at the direction of the Chief Justice. Because of its specialization, that panel was better able to track the different types of criminal appeals filed and pending before the court. In the area of appeals involving only the excessiveness of sentence, the court found itself confronted with an inventory of 568 cases some of which were three to four years old. That backlog was due mainly to the inability of the Public Defender to file briefs because of personnel and budget deficiencies. The judges were concerned that some defendants might be serving illegal or excessive sentences which could be fully served before being subjected to appellate review.

When the Program was instituted, appeals were generally scheduled for disposition according to the age of the case. The older the case, the earlier it would appear on the excessive sentence calendar. It was the intention of the court that all excessive sentence appeals be disposed of in similar manner. Contrary to defendant’s contention, the Program applied and presently applies to cases in which private counsel has been retained as well as Public Defender cases. Of course the former are in a distinct minority; cases which involve the sole issue of excessiveness of sentence are almost exclusively Public Defender cases.

At the beginning of the Program it was found that, in some instances, excessive sentence appeals had been assigned by the Public Defender to designated counsel for briefing on a contract basis. In those cases we accepted the briefs which were filed since they had been paid for by the Public Defender; our judicial review was based upon the records and briefs and oral argument was rarely heard.

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Related

In Re Civil Commitment of DL
797 A.2d 166 (New Jersey Superior Court App Division, 2002)
State v. Bianco
511 A.2d 600 (Supreme Court of New Jersey, 1986)

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Bluebook (online)
501 A.2d 528, 205 N.J. Super. 462, 1985 N.J. Super. LEXIS 1706, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bianco-njsuperctappdiv-1985.