Goldmann, Conford and Freund. The opinion of the court was delivered by Goldmann, S.j.a.d.
[55 NJSuper Page 564] On this appeal defendant, in effect, challenges the refusal of the County Court to declare invalid that portion of his sentence for carnal abuse in excess of five years.
On September 23, 1953 defendant, then 19 years of age, committed carnal abuse on a 14-year-old girl. N.J.S. 2 A:138-1 designates that offense a high misdemeanor, punishable by a fine not exceeding $5,000, or by imprisonment for not more than 15 years, or both. He was convicted and sentenced to the Bordentown Reformatory under the Indeterminate Sentence Act, N.J.S.A. 30:4-148, which provides:
"The courts in sentencing to the reformatory shall not fix or limit the duration of sentence, but the time which any such person shall serve in the reformatory or on parole shall not in any case exceed five years or the maximum term provided by law for the crime for which the prisoner was convicted and sentenced, if such maximum be less than five years; provided, however , that the court, in its discretion, for good cause shown, may impose a sentence greater than five years, but in no case greater than the maximum provided by law, and the commitment shall specify in every case the maximum of the sentence so imposed. * * *"
The Essex County Probation Department prepared an unusually detailed presentence investigation report for the use of the County Court before the imposition of sentence. The report stated that defendant was "an aggressive and emotionally unstable constitutional defective." It observed that although this was defendant's first conviction as an adult offender, he had been in "a load of difficulty as a juvenile," and the school authorities as well as the law enforcement authorities had had difficulty with him since 1946 when he was 12 years old. "There was a repetitive pattern of aggressive, incorrigible behavior from then on. * * * He is just a maladjusted constitutional defective who has also been classified as a 'pathological liar.'"
Upon receipt of the probation office report the court referred defendant to the New Jersey Diagnostic Center at Menlo Park for further examination. That institution reported that
"This patient, who is of a borderline mental-defective intelligence, appears to be a somewhat violent type of person who in his poor controls could well become dangerous. Diagnostically he appears to
be a severe personality disturbance, an antisocial, aggressive reaction type. Considering his poor mentality and the severity of his personality disturbance, we do not feel that he would be amenable of any form of psychiatric treatment either in an institution or without. Therefore would recommend that he be treated as a straight correctional case."
Consistent with the requirement of R.R. 3:7-10(b), the sentencing judge (County Court Judge Conlon, now deceased) made a brief statement of the basic reasons for the sentence, observing that the case was a "nasty" one, involving the forceful rape of a 14-year-old girl; that defendant had only recently been paroled from Bordentown Reformatory; and were it not for the fact that defendant was only 19 years old, he would commit him to the State Prison. Under the circumstances, said the judge, the sentence would be to Bordentown Reformatory "with the provision that the five-year maximum will not apply." The latter reference was unquestionably to N.J.S.A. 30:4-148.
In bringing his declaratory judgment action by assigned counsel, defendant demanded judgment that the court declare the provision in the sentence with respect to the non-applicability of the statutory five-year maximum term null and void because of failure to meet the requirements of N.J.S.A. 30:4-148, and that the maximum term to be served was five years. The matter was heard by Judge Gaulkin, then sitting in the Essex County Court, who concluded that the sentencing judge was obliged to state the number of years constituting the maximum sentence, and therefore so much of the sentence as provided that the five-year maximum would not apply was incomplete and unenforceable. He thereupon directed that defendant be brought before the court for correction of sentence.
At the resentence Judge Gaulkin had before him the presentence investigation and Diagnostic Center report that had been available to Judge Conlon, and made extensive reference to them. Judge Gaulkin had also arranged to have the ...