Decided: March 28, 1955.
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
EMEDIO CIANCI, DEFENDANT-RESPONDENT
On appeal from a judgment of the Superior Court, Appellate Division, where the following per curiam opinion was filed.
For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld, Jacobs and Brennan. For reversal -- Justices Heher and Burling.
[18 NJ Page 192]
"Appeal is taken from a trial court's denial of defendant's application to correct an alleged illegal sentence. The history of this case is fully set forth in a previous opinion of this court decided March 26, 1954. The question here considered was not disposed of in that appeal. Defendant contends that the trial judge erred in sentencing him to a term of not more than 20 years nor less than 10 years on his conviction for Indictment No. 32 in that the indictment charges different substantive crimes each requiring a separate sentence.
"Indictment No. 32 charges defendant and others with violating (1) in the first count R.S. 2:166-1 and R.S. 2:176-5 and (2) in the second count R.S. 2:110-2 and R.S. 2:176-5.
[18 NJ Page 193]
" R.S. 2:166-1 provides:
"'Any person who shall forcibly take from the person of another, money or personal goods and chattels, of any value whatever, by violence or putting him in fear, and his aiders, procurers and abettors, shall be guilty of a high misdemeanor, and punished by a fine not exceeding one thousand dollars, or imprisonment at hard labor not exceeding fifteen years, or both.'
" R.S. 2:176-5 provides in part:
"'Any person who shall commit or attempt to commit any assault, robbery, larceny, burglary or breaking and entering, when armed with or having in his possession any revolver, pistol, or other firearm, or other instrument of any kind known as a blackjack, slung shot, billy, sandclub, sandbag, bludgeon, metal knuckles, dagger, dirk, dangerous knife, stiletto, bomb, or other high explosive, shall, in addition to the punishment provided for the crime be punished on a first conviction by imprisonment for not more than five years; * * *. 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.'
" R.S. 2:110-2 provides in part:
"'Any person who shall commit an assault with intent to * * * commit * * * robbery * * * shall be guilty of a high misdemeanor, and punished by a fine not exceeding three thousand dollars or by imprisonment at hard labor not exceeding twelve years, or both.'
"Confusion arises in the prosecutor's argument with the contention that in effect but one crime has been committed and that basically Indictment No. 32 is so limited. A reading of the two counts obviously reveals the commission of two crimes: (1) of robbery where defendant was armed and (2) of an assault upon the victim.
"The sentence record does not specify what part of the sentence is levied on the first count and what part is levied on the second count. It reads:
"'Defendant being placed to the Bar for sentence he is sentenced to State Prison at hard labor for a maximum term of twenty (20) years and a minimum term of ten (10) years and thence until the cost of prosecution is paid.'
[18 NJ Page 194]
"The trial court is required to sentence defendant for maximum and minimum terms separately on the first count in his conviction for violating R.S. 2:166-1 and R.S. 2:176-5 and on the second count on his conviction for violating R.S. 2:110-2. When sentencing defendant on the first count, the trial court should state the minimum and maximum terms imposed under R.S. 2:166-1 and also state the minimum and maximum terms imposed in his discretion under R.S. 2:176-5. Defendant cannot be sentenced twice for violating R.S. 2:176-5. The argument is additionally made by the prosecutor that, if the defendant is resentenced, the trial court would, in all probability, give defendant sentences totaling the same years in two parts and thus how could a re-sentence profit defendant, citing State v. Tumbiolo, 28 N.J. Super. 231, 237 (App. Div., 1953). The answer is that no legislative grant exists for combining the penalties separately set forth in the above acts and the sentence is therefor ineffective. We may point out that defendant can profit by becoming eligible to be considered for parole at an earlier date if his minimum sentence becomes less than the present 10 years. In re Fitzpatrick, 9 N.J. Super. 511, 520 (Cty. Ct., 1950).
"Remanded for imposition of proper sentences under Indictment No. 32. R.R. 1:5-1(c)."
The judgment is affirmed for the reasons expressed in the opinion of the court below.