Conford, Kilkenny and Lewis. The opinion of the court was delivered by Lewis, J.A.D.
This court granted defendant Donald D. Laird leave to appeal in forma pauperis from a denial of a writ of habeas corpus. The defendant, after a plea of guilty, was sentenced on May 12, 1961 on two accusations -- one for breaking and entering with intent to steal, and the other for breaking and entering, and larceny. The court imposed a sentence of three to four years as to the former, and two to three years as to the latter (inclusive of both counts), the sentences to run consecutively and to be served at the New Jersey State Prison.
Defendant thereafter filed four successive postconviction applications (including two applications for a writ of habeas corpus) attacking his sentences on various grounds. On two or more such occasions he specifically raised the questions of not having been given an opportunity personally to speak in his own behalf at the time of sentencing and of the inadequacy
of the presentence investigation report on the basis of which the sentences were imposed. Defendant was not represented by counsel in any of those proceedings, all of which were decided against him. He seeks review of the last order of denial dated August 28, 1963.
This appeal is prosecuted by the prisoner pro se and, in substance, is predicated upon three alleged errors: (1) defendant was not accorded the right to bail; (2) the presentence report was false and inadequate; and (3) the trial court did not afford him the opportunity to speak in his own behalf before the imposition of sentence. The first two charges warrant summary disposition as they lack meritorious support.
The defendant was properly held without bail by the committing magistrate, and no application for bail was made to the Superior Court or County Court as provided by R.R. 3:9-3.
We called for and have reviewed the presentence record. The actual investigative report in connection with the sentencing in controversy consisted of a three-page report of the "Mercer County Probation Department -- Social Investigation," to which were attached statements of defendant and a complaining witness. The total record of the probation department in connection with defendant includes a considerable volume of material accumulated in connection with previous investigations incident to numerous sentences of defendant for previous crimes and offenses occurring over a period of several years. This material contained, among other things, a letter addressed to the Mercer County prosecutor, under date of November 3, 1960, from Drs. J. B. Spradley and Robert S. Garber, who examined the defendant while he was confined in the Mercer County jail. All of the prior investigative reports were made available to the court at the time of the sentencing here involved.
The fact that the probation officer, in conducting his last investigation, "did not go to defendant's home and interview his wife, nor make a general survey of his neighborhood to obtain the attitude of his neighbors toward him," does not in itself impugn the adequacy of the report as rendered. The prisoner's background as revealed by prior investigations was a proper matter for judicial consideration and, to the extent of the information therein contained, justified curtailing the scope of a current investigation which might have been more extensive if defendant had been a first-time offender.
For the most part the allegations of the prisoner leveled at the presentence report are imaginatively false, such as the statement "it appears here that the court sentenced the defendant for drinking and not for the crime charged." The sentences imposed were less than the maximums provided by law; and it seems obvious that the trial judge, in making reference to defendant's liquor and home-life problems, had taken those factors into consideration as possibly justifying an amelioration of punishment. State v. Pohlabel , 61 N.J. Super. 242 (App. Div. 1960), is clearly distinguishable. There, the court was in fact misled by the presentence report, and the circumstances, unlike here, compelled a reversal.
We turn now to the critical aspect of this appeal, the alleged deprivation of defendant's right to make a personal statement at sentencing. Review of this point calls for discerning inspection as to what transpired at the time the prisoner stood before the sentencing court. The facts can be best brought into focus by quoting from the record. After the prosecutor moved for sentence, defendant's counsel made a brief statement on behalf of his client (two paragraphs in print), concluding, "We respectfully ask the court's consideration of Mr. Laird's condition and habit in passing ...