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State v. Sabo

Decided: February 23, 1965.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
EUGENE SABO, DEFENDANT-APPELLANT



Conford, Kilkenny and Lewis. The opinion of the court was delivered by Kilkenny, J.A.D.

Kilkenny

[86 NJSuper Page 509] The Middlesex County grand jury indicted defendant for "uttering" a forged check, well knowing that the endorsement of the payee thereon was a forgery, in

violation of N.J.S. 2A:109-1. After a two-day trial, the foreman of the jury announced the verdict as follows:

"We find the Defendant guilty of Uttering and Passing the check."

The judgment record states that the trial judge, in sentencing defendant on October 20, 1961, said:

"You stand convicted of the crime of Forgery [sic], a high misdemeanor, and the sentence of the court upon that conviction is that you, Eugene Sabo, be imprisoned at hard labor in State Prison for a term of not less than 3 years and not more than 5 years."

Defendant appeals as an indigent from the judgment of conviction.

I.

Defendant argues that the action of the trial judge, in imposing a sentence for "forgery," created a void sentence and, for that reason, his conviction should be completely nullified.

We do not know why the judgment record shows that the trial judge referred to the crime, for which defendant was indicted and convicted, as "forgery," when, in fact, it was "uttering" a forged check. At the time of sentence, the assistant prosecutor incorrectly stated that defendant had been found guilty of "forgery." Defendant's assigned attorney did not correct that obvious misstatement but, instead, made a plea for leniency based upon defendant's alleged "craving for alcohol or drinking" and "domestic difficulties." However, the erroneous description of the crime was immediately corrected by defendant himself, when he was afforded an opportunity to address the court before sentence was imposed. He told the court: "The jury didn't find me guilty of forgery, they found me guilty of uttering and passing, if I'm not mistaken. So I would like to know exactly which charge I'm tried for -- got tried for and found guilty of." The trial judge did not acknowledge the assistant prosecutor's error or tell defendant "exactly which charge" he was "tried for and found

guilty of." Instead, the trial judge told defendant that "this isn't the time and place," referred to his long record of convictions, including nine for "stealing mail from mailboxes," and then pronounced sentence as follows, according to the stenographic transcript:

"It is the sentence of the Court that you be committed to the State Prison for a term of three to five years and that you be given ...


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