STATE v. THEURER, 62 N.J. 64 (1972)

298 A.2d 72

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. JOHN BEIER THEURER, DEFENDANT-RESPONDENT.

Supreme Court of New Jersey.Argued November 21, 1972 —
Decided December 18, 1972.

Appeal from Superior Court, Appellate Division.

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Mr. Michael R. Perle, Deputy Attorney General, argued the cause for appellant (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).

Mr. Maurice M. Krivit argued the cause for respondent (Messrs. Krivit, Levitov, Miller, Galdieri DeLuca, attorneys Mr. Spencer N. Miller, on the brief).

PER CURIAM.

The judgment of conviction was entered on defendant’s plea of guilty. After sentence he sought to withdraw the plea, which application the trial court denied. The Appellate Division reversed, holding that the application to withdraw the plea should have been granted. 118 N.J. Super. 485 (1972). We granted the State’s petition for certification. 60 N.J. 512
(1972).

At the argument before us, the State and the defense stated that they had arrived at an understanding that the plea of guilty remain and that the sentence imposed be affirmed with, however, the modification that the execution of the jail term be suspended. The basis for the State’s agreement

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to that disposition was the deteriorating physical condition of the defendant. We called for further medical proof. The further proof has been submitted and considered, and in the light of it we believe that the agreement recited above would be an appropriate disposition of this matter.

The judgment of the Appellate Division is accordingly reversed and the judgment of the trial court is reinstated, with, however, directions to modify the same so as to provide that the execution of the jail sentence be suspended.

We note, however, our disagreement with the criticism of the trial court made in the Appellate Division opinion. We find no basis for the statement that the trial court participated in plea bargaining, and with respect to the events on the day of sentence, the most we can find is a possible misunderstanding between the court and defense counsel.

For reversal — Chief Justice WEINTRAUB, Justices JACOBS, HALL and MOUNTAIN, and Judges SULLIVAN and LEWIS — 6.

For affirmance — None.

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