Goldmann, Foley and Lewis. The opinion of the court was delivered by Goldmann, S.j.a.d.
John T. Nicholson was convicted in the Camden County Court for the crime of conspiracy, in violation of N.J.S. 2A:98-1. On January 28, 1960 he was sentenced to serve an indeterminate term in the New Jersey Reformatory at Bordentown. See N.J.S.A. 30:4-148.
N.J.S. 2A:98-1 provides that the crime of conspiracy shall be punished as a misdemeanor unless the conspiracy involved the possession, sale or use of narcotic drugs, in which case the crime is denoted a high misdemeanor. There is no indication that narcotics were involved in Nicholson's offense, and we must therefore assume that he was convicted of a misdemeanor. N.J.S. 2A:85-7 provides that the punishment for any person found guilty of a misdemeanor shall be a fine of not more than $1,000 or imprisonment for not more than three years, or both. It thus appears that the maximum sentence for Nicholson's offense was three years. Despite the language of N.J.S.A. 30:4-148, quoted below, the County Court judge specified in his order of commitment that the maximum of Nicholson's sentence should not exceed 18 months.
The Attorney General then applied for correction of illegal sentence pursuant to R.R. 3:7-13, contending that the court should have imposed an institutional sentence without minimum and without specifying a maximum less than that provided by N.J.S. 2A:98-1 and 2A:85-7, namely, three years. The County Court judge appointed present counsel, Ira Rabkin, Esquire, to represent Nicholson. In order to explore fully the programs of reformatory type institutions
as well as the policies dictating those programs, the sentencing judge took the testimony of Dr. Lloyd W. McCorkle, Director of the Division of Correction and Parole in the Department of Institutions and Agencies, accepted as an expert in penology and criminology. At the close of that testimony the court refused to correct the alleged illegal sentence. This appeal followed.
The sole question before us is whether a sentencing court, in committing to a reformatory pursuant to N.J.S.A. 30:4-148, may, in the circumstances here present, set a maximum period of detention less than the maximum prescribed by statute. N.J.S.A. 30:4-148 reads:
"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 term may be terminated by the board of managers in accordance with its rules and regulations formally adopted." (Italics ours)
The provisions governing commitments to the Annandale Reformatory and the New Jersey State Reformatory for Women are to like effect, the italicized text having been added to all three statutes by L. 1951, c. 335. See N.J.S.A. 30:4-152 and 30:4-155.
The predecessor of the Bordentown Reformatory, the New Jersey Reformatory at Rahway, was established in 1895. L. 1895, c. 357. From the outset provision was made for indeterminate type sentences at Rahway. Section 9 of L. 1901, c. 104, "An Act relating to the management of the New Jersey Reformatory," directed that
"The courts in sentencing to the reformatory shall not fix or limit the duration of sentence, and it shall not in any case exceed
the maximum term provided by law for the crime for which the prisoner was convicted and sentenced, and may be terminated by the managers of ...