State v. MuessigState v. Muessig
On this appeal the defendant contends that a three-year mandatory minimum sentence constitutes “cruel and unusual” punishment in violation of the federal and State Constitutions.
This matter has been returned to us following our remand of July 25, 1983 in A-5576-81T4. Defendant was charged in a five-count indictment and pled guilty to official misconduct as a police officer,
At the time of the original sentencing, the triаl judge observed that the weapon charge was a violation of the so-called “Graves Act,”
The judge reached the same conclusion following a hearing and the State again appealed. We must now consider if the record supports the finding that the Graves Act, as applied to this defendant, amounted to cruel and unusual punishment in violation of the New Jersey and the federаl constitutions. See State v. Des Marets, 92 N.J. 62, 82 (1983);
We consider the offense most serious. Defendant undertook to engage in distribution of coсaine. He provided money ($5,000) to aid in the establishment of the enterprise and armed himself to protect his interests. He turned on the society that he had been entrusted to protect as a police оfficer. See In the Matter of Coruzzi, 98 N.J. 77 at 79 (1984). Under ordinary circumstances a three-year minimum term with a maximum of seven years would be most appropriate for punishment and for general and special deterrent purposes. The question hеre is whether the circumstances of defendant‘s illness and problems of his personal security within the prison system are so extreme as to constitutionally mandate a judicial exemption from the legislative will. With deference to the considered and thoughtful decision of the Law Division judge, we think an exemption was uncalled for in this case.
At the hearing defendant‘s witness, Dr. Lewinter, a Board Certified internist, testified that defendant‘s cоndition of migratory thrombophlebitis was controllable by an anti-coagulant, Coumadin, but was not curable. It is a rare condition of unknown etiology. Defendant‘s application for medical retirement
The State produced two witnesses, Gary Hilton, the Assistant Commissioner of the Department of Corrections, and Allan Koenigsferst, Health and Service Coordinator for the Department. Hilton testified that because of defendant‘s mandatory minimum sentencе of three years he “would have to remain — absent a variance, would have to remain in a closed setting for one-half of the stipulated minimum or one-and-one-half years, and then assuming no other objections, it would probably be reduced to minimum custody and placed in a minimum camp-type of situation.” In the event protective custody was indicated, defendant would be placed in a maximum security facility, most likely the new wing of the Trenton State Prison. Some police officers serve their prison terms in protective custody, but not all. Medical considerations are certainly factors in this consideration, as well аs the character of the inmate.
From the testimony of Hilton and Koenigsfest, the prison system can without doubt provide adequate medical attention for defendant‘s illness. They testified that the penal system cаn “provide whatever level of medical treatment that might be required by almost any person sentenced to us.” For
The sentencing judge was concerned with the ability of the prison system to protect defendant. He found that incarceration would present “a substantial risk that defendant would be seriously hurt or in fact die as a result of possible trauma in connection with his disease causing perhaps fatal results.”
Whether the defendant requires solitary or segregated confinement for his own protection during maximum status is an administrative decision. See Bell v. Wolfish, 441 U.S. 520, 547-548, 99 S.Ct. 1861, 1878-1879, 60 L.Ed.2d 447 (1979). We are certain such confinement, if necessary for defendant‘s protection, will be available. The sentencing judge thought such segregated confinement, if necessary for the first year and one-half when medium security status was required, absent an exception or variance, was “shocking to the conscience of a just society.”
Hilton described protective custody as essentially isolation — “22 or so hours or so in a cell” — “maybe an hour a day or so of outdоor or indoor exercise.” Meals are eaten in the cell. “Congregate groupings are held to very small members and the members of that congregate function are carefully analyzed in terms of their compatability. In the most secure setting only one person is allowed out at a time.” In the cell a prisoner may have a television set, an ice chest, a radio, an electric shaver, a typewriter, books, other personal effects and legal material. Hilton said that in the special protective unit at Trenton‘s new wing “there would be no random congregate exposure to anyone in that unit, and if thеy leave that unit, they would be
The real substanсe of the sentencing judge‘s opinion seems to have been that if defendant was placed in a prison setting, rather than a camp or at Clinton, and chose not to mix with any other inmates in a protectivе custody environment, it would be cruel and unusual punishment for him “to be kept in a cell 23 hours a day, which amounts to solitary confinement.” This assumes that defendant would not be granted an administrative variance and assigned tо a “soft” location, i.e. Clinton or Jones Farm, where he would associate with nonviolent, white-collar type criminals. The judge‘s decision is also susceptible of an interpretation that any prison confinemеnt for defendant in this State involved a substantial risk of serious injury or death. With these conclusions on this record, we disagree.
While a substantially solitary confinement may be harsh, it is not unconstitutional per se. See Hutto v. Finney, 437 U.S. 678, 685-686, 98 S.Ct. 2565, 2570-2571, 57 L.Ed.2d 522 (1978), rehear. den. 439 U.S. 1122, 99 S.Ct. 1035, 59 L.Ed.2d 83 (1977). Where conditions of cоnfinement provide for sanitary quarters with access to such amenities as television, radio, reading materials and visitors, segregated confinement virtually around the clock, even for a period of up tо eighteen months, is short of cruel and unusual punishment. Hodges v. Klein, 421 F. Supp. 1224, 1236 (1976), aff‘d o.b. 562 F.2d 276 (3d Cir.1977).
We conclude that defendant‘s equal protection clause attack on the Graves Act, not the subject of a cross-appeal and not raised below, is not properly before us and, in any event, is clearly without merit. Des Marets, 92 N.J. at 73;
We reverse and remand for sentencing in conformity with this opinion.