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State v. Ivan

Decided: June 28, 1960.


On appeal from the County Court, Law Division.

For affirmance -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- None. The opinion of the court was delivered by Weintraub, C.J.


Following a plea of non vult to an indictment for bookmaking in violation of N.J.S. 2 A:112-3, defendant was sentenced to a term of one to two years and fined $5,000. We certified his appeal on our motion before the Appellate Division considered it.

Defendants asserts the sentence is illegal. It admittedly is within the limits fixed by the Legislature in the cited

statute (a fine of not less than $1,000 nor more than $5,000, or imprisonment in the State prison for not less than one year nor more than five years, or both). Defendant however charges the trial judge had a preconceived policy that offenses of that kind merit the sentence imposed without regard to the circumstances of the individual offender. Defendant stresses that he had no prior conviction, is a good family man, and has a record of regular employment in industry.

The transcript does not support a claim that the mentioned circumstances were ignored. The trial judge had before him the presentence report required by R.R. 3:7-10(b). As we read the record, the trial judge expressed the view that the challenge of organized gambling cannot be met without effective deterrence; that a sentence such as the one imposed is necessary to protect the public interest; that none of the facts in the presentence report or presented by counsel were sufficient to justify a different course; that, on the contrary, the report showed that defendant would not reveal the identity of his superior in the gambling operation, giving the stock explanation that he knows only the first name of that individual, an answer the trial court understandably declined to credit. Upon these total circumstances the trial judge sentenced as he did. He made it plain that he would take another course if the defendant, instead of protecting others and thus assisting them to continue their illegal venture, had evidenced a willingness to side with law and order.

The philosophical justification for "punishment" has divided men for centuries. Suggested bases or aims are (1) retribution, (2) deterrence of others, (3) rehabilitation of the defendant, and (4) protection of the public by isolation of the offender. Redmount, " Some Basic Considerations Regarding Penal Policy," 49 Journal of Criminal Law, Criminology and Police Science 426 (1959). Today retribution is not a favored thesis, although some still claim a need to satisfy a public demand for vengeance. Perhaps it persists

as an unarticulated premise in individual sentences. Present-day thinking emphasizes deterrence and rehabilitation. Few would permanently isolate the offender without regard to the nature of his crime upon a finding of incorrigibility. That course, however defensible in abstract theory, cannot be seriously considered until future behavior is predictable with substantial certainty. The Legislature has adopted that approach only with respect to multiple convictions. Otherwise society may be secured against repetition of crime only within the limit of the maximum punishment authorized for the particular offense.

Expressed in other terms, the prevailing theme is that punishment should fit the offender as well as the offense. Williams v. People of State of New York, 337 U.S. 241, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949), rehearing denied 337 U.S. 961, 69 S. Ct. 1529, 93 L. Ed. 1760 (1949), rehearing denied 338 U.S. 841, 70 S. Ct. 34, 94 L. Ed. 514 (1949); State v. White, 27 N.J. 158, 184 (1958) (concurring opinion). The presentence report required mandatorily by R.R. 3:7-10(b) is designed to that end. See State v. Jenkins, 32 N.J. 109, 114 (1960); State v. Culver, 23 N.J. 495 (1957), certiorari denied 354 U.S. 925, 77 S. Ct. 1387, 1 L. Ed. 2 d 1441 (1957), certiorari denied 359 U.S. 975, 79 S. Ct. 884, 3 L. Ed. 2 d 842 (1959). Except where the Legislature has decreed a mandatory sentence, thereby determining the punishment should fit the offense without regard to the circumstances of the offender, the problem devolves upon the sentencing judge. Our Legislature has not stated the aims to be achieved by punishment. Indeed few Legislatures have, and where they have, the statement has been "too general to be of service." Model Penal Code (Tentative Draft No. 2, May 3, 1954), ยง 1.02, Comment, p. 5. The section of the Model Penal Code just cited lists eight general purposes governing the sentence and treatment of offenders:

"(a) To prevent the commission of offenses;

(b) To promote the correction and rehabilitation of ...

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