STATE OF NEW JERSEY v. MUSA SHIHADEH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0431-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MUSA SHIHADEH,

Defendant-Appellant.

_________________________________

November 18, 2011

Submitted October 24, 2011 - Decided

Before Judges Sabatino and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No.

578-80.

Ferro and Ferro, attorneys for appellant (Nancy C. Ferro, on the brief).

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Musa Shihadeh appeals from a September 3, 2010 order denying his motion to be released from prison because he is now elderly and ill. We affirm.

In 1982, a jury in Ocean County convicted defendant of murder, N.J.S.A. 2C:11-3, and he was sentenced to life imprisonment with twenty-five years to be served before parole eligibility. The murder was committed because of a dispute about unlawful business dealings. Defendant and two accomplices lured the victim onto a boat, where defendant gave a signal to one of the accomplices to carry out the murder. The accomplice shot the victim three times in the back of the head, and the body was then dumped into Barnegat Bay.

After serving more than twenty-eight years of the prison sentence, defendant moved before the trial court in April 2010 for a modification of his sentence pursuant to Rule 3:21-10(b)(2). That rule provides that a custodial sentence may be amended "to permit the release of a defendant because of illness or infirmity." Defendant was eighty years old at the time he filed the motion. He submitted prison medical records to show that he suffers from anemia, constipation, arthritis, headaches, urinary tract infections, and gastro-intestinal bleeding. He stated he was taking medications and food supplements to treat his health problems, including Flomax, Prilosec, Meclizine, Metamucil, Celebrex, aspirin, and Ensure. He also attached a report of a psychologist who had recently interviewed him by video transmission and concluded that defendant was not competent to stand trial for a second murder charge dating to 1973. That charge had been dismissed many years ago because a crucial witness had died, but the Bergen County Prosecutor's Office had re-charged defendant in 2007 after finding a new witness. A psychologist for the State also evaluated defendant and concluded that he is mentally competent to stand trial on the new murder charge.

In a written opinion, Judge Wendel Daniels concluded that the documentary evidence presented by defendant did not show he was suffering from a life-threatening illness and that prison authorities were able to treat defendant's medical conditions, mostly with over-the-counter medications. Taking into account the seriousness of the crime for which defendant was serving a sentence of life imprisonment, the judge denied defendant's motion to be released from prison.

On appeal, defendant argues:

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A CHANGE OF CUSTODY UNDER THE CIRCUMSTANCES WITHOUT A HEARING OR EVEN ORAL ARGUMENT.

A hearing is not always required to address a motion for amendment of sentence under Rule 3:21-10(b)(2). The rule states:

A motion filed pursuant to paragraph (b) hereof shall be accompanied by supporting affidavits and such other documents and papers as set forth the basis for the relief sought. A hearing need not be conducted on a motion filed under paragraph (b) hereof unless the court, after review of the material submitted with the motion papers, concludes that a hearing is required in the interest of justice.

[R. 3:21-10(c).]

The judge reviewed the documents filed with defendant's motion and determined that a hearing was not necessary. We find no abuse of discretion in that determination.

The judge followed appropriate case authority in considering the gravity of both defendant's physical and mental conditions. See State v. Verducci, 199 N.J. Super. 329, 334 (App. Div. 1985). The judge also properly considered the seriousness of defendant's crime. See State v. Priester, 99 N.J. 123, 137 (1985); Verducci, supra, 199 N.J. Super. at 335-36. The murder conviction for which defendant is serving a sentence of life imprisonment is not comparable to the bookmaking offense in State v. Tumminello, 70 N.J. 187, 189-90, 193-94 (1976), which was that defendant's first criminal conviction and which the Supreme Court weighed against a serious medical condition. The Court in Tumminello acknowledged that "[t]he scale might very well tip in favor of incarceration despite the possibility of adverse physical effects were we faced with an experienced criminal or with a more shocking crime." Id. at 194.

The judge in this case relied on the medical records defendant had submitted to conclude that his conditions were being treated in prison and that the circumstances as a whole did not warrant his release. That decision was not an abuse of the judge's discretion in ruling on a motion for release pursuant to Rule 3:21-10(b)(2). See Priester, supra, 99 N.J. at 135.

We affirm denial of defendant's motion to amend his sentence of imprisonment for the reasons stated in the written opinion of Judge Daniels issued on September 3, 2010.

Affirmed.