Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Goldmann, S.j.a.d.
This is an indigent defendant's appeal from County Court judgments of conviction, entered after a jury verdict of guilty, for the crimes of breaking and entering with intent to commit rape (N.J.S. 2A:94-1 -- indictment No. 148-62) and rape (N.J.S. 2A:138-1 -- indictment No. 149-62).
The Passaic County grand jury returned five indictments against defendant. Indictment Nos. 146-62 and 150-62 do not concern us, for they were dismissed on motion of the
prosecutor. Indictment No. 147-62 charged defendant with assault with intent to commit rape on one L, in Paterson, N.J., on March 25, 1962. Indictment No. 148-62 charged him with breaking and entering with intent to commit rape on H, in Paterson on August 31, 1962. Finally, indictment No. 149-62 charged defendant with raping H on the latter occasion. Defendant pleaded not guilty to all three indictments and stood trial on the latter two. The jury found him guilty.
Pursuant to N.J.S. 2A:164-3 (section 1 of the Sex Offender Act, L. 1950, c. 207, as amended; N.J.S. 2A:164-3 et seq.) the county judge then referred him to the Menlo Park Diagnostic Center for examination. The Center rendered its report on January 3, 1963, stating that defendant's case fell within the purview of N.J.S. 2A:164-5 and recommending that he be committed to an institution, namely, Greystone Park. See N.J.S. 2A:164-6(b).
Defendant having retracted his not guilty plea to indictment No. 147-62 and entered a plea of guilty, the county judge again referred him to the Diagnostic Center which, in its January 15, 1963 report, found that this case also came within N.J.S. 2A:164-5 and recommended that defendant be committed to Greystone Park.
Defendant appeared for sentence on January 18, 1963. The two Diagnostic Center reports had been made available to defense counsel, who had discussed them with defendant and found them accurate. The trial judge, although stating that he was fully cognizant of the provisions of the Sex Offender Act and the two reports, imposed the following sentences: on indictment No. 147-62, a State Prison term of 10-12 years and a $1,000 fine; on indictment No. 148-62, a State Prison term of 5-7 years to run consecutively to the 147-62 sentence; and on indictment No. 149-62, a further State Prison term of 7-10 years to run consecutively to those imposed on Nos. 147-62 and 148-62.
Defendant's appeal challenges the propriety of the convictions on four grounds: (1) the prosecutor's reference on
summation to defendant's prior criminal record was prejudicial and constituted plain error; (2) the trial court committed error in admitting defendant's confession into evidence; (3) it erred in failing to grant defendant's motion for judgment of acquittal at the close of the State's case; and (4) the trial judge completely ignored the recommendations of the Diagnostic Center. The first point is raised by assigned counsel; the remaining three have been presented by him at defendant's specific request and direction.
[The court here found the first three grounds without merit.]
We come, then, to defendant's final argument that the trial court ignored the Diagnostic Center recommendations in imposing the ...