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State v. Kunz

Decided: December 16, 1969.


For remandment for resentencing -- Chief Justice Weintraub and Justices Jacobs, Proctor, Hall and Schettino. For remandment for certification -- Justices Francis and Haneman. The opinion of the court was delivered by Jacobs, J. Haneman, J. (dissenting). Francis, J. (dissenting).


The defendant was convicted of having purchased a stolen automobile in violation of N.J.S.A. 2A: 139-1. Cf. State v. Bott, 53 N.J. 391 (1969). At the time of sentencing, defense counsel asked that he be given an opportunity to review the presentence report which the trial judge had theretofore examined. The request was denied and the defendant was sentenced to serve a term of "not less than one year nor more than two years in New Jersey State Prison." The Appellate Division rejected the defendant's appeal in an unreported per curiam which stated that "[t]here was no right on the part of the defendant or counsel to see the presentence report for aid in argument on mitigation of sentence." We granted certification. 53 N.J. 273 (1969).

The parties have filed an agreed statement in lieu of trial transcript. It sets forth that the State's case consisted of testimony that a Coupe de Ville Cadillac owned by Mr. Degenshein of New York had been stolen; that the title papers covering it had been transferred to the defendant from a Vermont registration; that the Certificate of Ownership issued by the State of New Jersey certified that the person named therein was the owner of the vehicle; that there was nothing irregular on the face of the registration and title certificate; that the serial number of the automobile had been altered; and that when the defendant was questioned by a State Trooper he said that he had paid $4,600 in cash for the automobile to a man who identified himself as Harvey Bruner of Vermont and who represented that he was in the business of repossessing automobiles for finance companies and banks and reselling them.

The defendant testified that he purchased the automobile for $4,600 in cash which he had borrowed from his mother and sister; that he considered that that was a fair and reasonable price for the automobile which had some recorded mileage and minor defects such as a ripped seat, an inoperative air conditioner, etc.; that he is a homeowner, a family

man and the father of two small children; that he has been in business with his partner Mr. Grimm at the same location for more than ten years and that "he had absolutely no criminal record of any kind and had never been in any kind of trouble at any time during his life." Mr. Grimm testified in support with respect to their business relationship and "that the defendant had an excellent reputation in the business community and had never been in any trouble of any kind to his knowledge." The defendant's sister also testified, saying that the defendant "had an excellent reputation in his residential community, that he was a family man with two small children, owned his own home and had never been in any kind of trouble in his lifetime."

The agreed statement further sets forth that although the reports of investigators and portions of the prosecutor's file contained "suspicions or speculations" that the defendant knew more about the stolen automobile than he was willing to say, no supporting proof or evidence of any kind was ever brought out during the trial proceedings against the defendant. The jury found the defendant guilty and in the light of that finding it must be assumed that when the defendant purchased the automobile he knew it was stolen. But the finding as such did not implicate the defendant beyond being a knowing purchaser of a stolen automobile and when his counsel appeared at sentencing time, to plead for probation or other minimal sentence, he appropriately stressed his understanding that the defendant was an established business man of good reputation with no prior or other involvement with the law. The trial judge, without any comment as to the contents of the presentence report or as to any suggested additional involvement on the defendant's part, imposed the State Prison term.

In compliance with R.R. 3:7-10(b) (see R. 3:21-2) the trial judge noted his reason for imposition of the State Prison sentence as follows: "Although this is the defendant's first arrest, incarceration is deemed necessary." After the Appellate Division had sustained the sentence, the defendant's

counsel moved before the trial judge for its reduction, stressing that "this defendant has had throughout his entire life an exemplary and clear record, never been arrested, never had any involvement with the authorities of any kind whatever." Still without disclosure of the contents of the presentence report, the trial judge stated that he had restudied the report and did not feel that there should be "any change in the sentence."

In his petition for certification, defense counsel reiterated his understanding as to the defendant's good background and reputation and his view as to the unjust nature of the sentence. Before oral argument we examined the presentence report and noted particularly that it charged that a stolen vehicle ring, specializing in Cadillacs, was being operated by a named individual whose "contact in New Jersey" was the defendant and that the defendant had been involved with several identified purchases of stolen automobiles in New Jersey. When at oral argument this was called to the attention of defense counsel, he branded the charge as wholly unfounded and reasserted his position that the defendant's only transgression and its full extent was the single offense which was the subject of the trial.

The appeal to the Appellate Division as well as the petition for certification to this Court were addressed solely to the sentence and both attacked the trial court's action in refusing to disclose the contents of the presentence report and in relying on crucial extra-trial charges therein which the defendant alleges were groundless. He contends that his sentencing in such manner violated his rights under the due process clause of the fourteenth amendment. See Townsend v. Burke, 334 U.S. 736, 68 S. Ct. 1252, 92 L. Ed. 1690 (1948); but cf. Williams v. New York, 337 U.S. 241, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949); see also Baker v. United States, 388 F.2d 931 (4 Cir. 1968); Verdugo v. United States, 402 F.2d 599, 613 (9 Cir. 1948) (concurring opinion). He further contends that, wholly apart from any constitutional compulsion, he should, as a

matter of rudimentary fairness, have been permitted to examine the presentence report and have been afforded an opportunity to meet the extra-trial charges therein which were presumably responsible for the severity of his sentence. See American Bar Association Project On Minimum Standards for Criminal Justice, Sentencing Alternatives and Procedures 200-28 (Approved Draft 1968); President's Commission On Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 144-45 (1967); President's Commission On Law Enforcement and Administration of Justice, Task Force Report: The Courts 20 (1967); Lehrich, "The Use and Disclosure of Presentence Reports in The United States," 47 F.R.D. 225 (1969); Higgins, "Confidentiality of Presentence Reports," 28 Albany L. Rev. 12 (1964); Wyzanski, "A Trial Judge's Freedom and Responsibility," 65 Harv. L. Rev. 1281, 1291-92 (1952); Notes, 81 Harv. L. Rev. 821, 835-43 (1968); 58 Colum. L. Rev. 702 (1958).

Presentence reports were originally designed to benefit the individual offenders and lessen the severity of the penal laws. They were incident to the penological approach which sought, and still seeks, to tailor the sentence to the background and present circumstances of the offender along with the nature of his offense. Their worth, so long as they are accurate, is beyond question; if inaccurate their harm may be incalculable. Those who have expressed support for an open policy of disclosure of presentence reports to defendants have urged that, even apart from the overriding considerations of fairness and justness, it will serve to improve and strengthen probation reports by promoting greater accuracy on the part of the officials as well as the persons who supply information to them. Those who have expressed opposition to such a policy have urged primarily that it will dry up necessary sources of information. They say that without a promise of confidentiality, the defendant's employer, his family, friends and others, will generally remain silent as to his habits, associations, and other personal data. However,

they furnish little in the way of solid support for their apprehensions which apparently have not materialized in jurisdictions already operating under local policies of disclosure. See Winter, J., concurring in Baker v. United States, supra, 388 F.2d at 935:

Legal literature is replete with a debate over the pros and cons of disclosure and non-disclosure, but we need look no further than the District of Maryland in determining how district judges should be guided. In the District of Maryland, disclosure of presentence reports, in accordance with my views, has been the practice for over ten years. The experience of Maryland belies the fears that, as general propositions, sources of confidential information dry up, probation officers are deprived of trustworthy and logical informants, and the object of the report is defeated, if the contents of reports are disclosed.

See also Thomsen, "Confidentiality of the Presentence Report: A Middle Position," 28 Fed. Prob. 8 (1964); Higgins, "In Response to Roche," 29 Albany L. Rev. 225, 229 (1965); cf. Roche, "The Position for Confidentiality of the Presentence Investigation Report," 29 Albany L. Rev. 206, 222-24 (1965).

The local practice of disclosure referred to in Judge Winter's opinion finds counterparts in quite a few of our sister states as well as in foreign jurisdictions such as Canada and Great Britain. See Criminal Justice Act of 1967, c. 80, sec. 57; Criminal Justice Act of 1948, 11 & 12 Geo. 6, c. 58, sec. 43; Jackson, The Machinery of Justice in England 248-50 (5 th ed. 1967); Note, "Right of Criminal Offender to Challenge Report Used in Determining Sentence," 49 Colum. L. Rev. 567, 567-72 (1949). The California Penal Code (§ 1203) (Deering's 1969 Supp.) specifically provides that the presentence report must be made available to the prosecuting and defense attorneys as well as the court. See also Ala. Code tit. 42, § 23 (1959); Minn. Stat. Ann. § 609. 115(4) (1965). The Virginia Code (§ 53-278.1) (1967) specifically provides that in certain cases the probation officer shall present his report in open court in the presence of the defendant who may cross-examine and may present materials on his own behalf. Cf. Ariz. Rev. Stat. Ann., R. Crim. P.

336 (1956); Idaho Code Ann. §§ 19-2515, 19-2516 (Supp. 1965); N.D. Cent. Code §§ 29-26 - 17, 18, 19 (1965); Okla. Stat. Ann. tit. 22, § 973 (1961); Ore. Rev. Stat. § 137.080 - .110 (Supp. 1965); Kuhl v. District Court, 139 Mont. 536, 366 P. 2 d 347 (1961); Spencer v. State, 275 P. 2 d 329 (Okla. Crim. Ct. App. 1954). In some states where the legislative codes and the court rules were entirely silent on the subject, the need for disclosure was recognized by court decisions. See State v. Harmon, 147 Conn. 125, 157 A. 2 d 594, 596 (1960); cf. Driver v. State, 201 Md. 25, 92 A. 2 d 570, 573 (1952); State v. Pope, 257 N.C. 326, 126 S.E. 2 d 126 (1962).

The practice in the federal courts, as well as in many of the states, has been to leave the choice of disclosure or nondisclosure to the discretion of the trial judge. See Fed. R. Crim. P. 32(c)(2) (Notes of Advisory Committee); 8A J. Moore, Federal Practice, 32.01[3], 32.03[4] (1969). In United States ex rel. Gerchman v. Maroney, 355 F.2d 302 (3 Cir. 1966), the court pointed to the "increasing uneasiness" regarding the federal rule's failure to adopt the practice of disclosure as a matter of right so that the defendant might have fair opportunity "to show factual errors in the report." 355 F.2d at 310 n. 10. And in United States v. Fischer, 381 F.2d 509 (2 Cir. 1967), the court noted that the federal discretionary rule should not be exercised "conservatively and in a niggardly fashion" but, on the contrary, "the administration of justice would be improved by a liberal and generous use of the power to disclose." 381 F.2d at 512. See Baker v. United States, supra, 388 F.2d at 935; cf. Smith v. United States, 223 F.2d 750, 754 (5 Cir. 1955); Stephan v. United States, 133 F.2d 87, 100 (6 Cir.), cert. denied, 318 U.S. 781, 63 S. Ct. 858, 87 L. Ed. 1148 (1943); see also Federal District Judge Wyzanski's comment in 65 Harv. L. Rev., supra at 1291:

Despite the latitude permitted by the Due Process Clause, it seems to me that a judge in considering his sentence, just as in trying a defendant, should never take into account any evidence, report or

other fact which is not brought to the attention of defendant's counsel with opportunity to rebut it. Audi alteram partem, if it is not a universal principle of democratic justice, is at any rate sufficiently well founded not to be departed from by a trial judge when he is performing his most important function.

The academic world has been widely critical of the federal rule's omission of mandatory disclosure. In 1954, Tentative Draft No. 2 of the American Law Institute's Model Penal Code proposed that before imposing sentence, the court advise "the defendant or his counsel of the factual contents and the conclusions of any pre-sentence investigation or psychiatric examination and afford fair opportunity, if the defendant so requests, to controvert them." There was a proviso that "the sources of confidential information need not, however, be disclosed." § 7.07(5). The comment accompanying the proposal noted that "less disclosure than this hardly comports with elementary fairness" (at 55). In 1962, the Proposed Official Draft of the Model Penal Code reaffirmed the proposal without alteration. In 1967, the President's Commission on Law Enforcement and Administration of Justice recommended that "[i]n the absence of compelling reasons for nondisclosure of special information, the defendant and his counsel should be permitted to examine the entire presentence report." President's Commission On Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society, supra at 145; see President's Commission On Law Enforcement and Administration of Justice, Task Force Report: The Courts, supra at 20; Guzman, "Defendant's Access to Presentence Reports in Federal Criminal Courts," 52 Iowa L. Rev. 161, 181-85 (1966); Rubin, The Law of Criminal Correction at 87-101 (1963); Tappan, Crime, Justice and Correction at 553-59 (1960).

In 1967, the American Bar Association's Advisory Committee on Sentencing and Review, headed by Federal Circuit Judge Sobeloff, submitted a comprehensive report which dealt in significant part with the question of whether there

should be mandatory disclosure of presentence reports. See Sentencing Alternatives and Procedures, supra. The report discussed the three basic arguments which had been advanced in opposition to disclosure. Id. at 216. With respect to the feared drying up of sources of information, it concluded that there was little factual basis for the fear, id. at 219, and it referred to the supportive experiences of members of the Committee who had lived under systems where disclosure was routine. With respect to the suggestions that disclosure would involve undue delay, the Committee noted that in most instances an appropriate presentence conference (see § 4.5(b), at 226) would avoid such delay and that, in any event, justice required that a properly conducted sentencing proceeding "be more protracted rather than less because of nondisclosure of the report." Id. at 222. Finally, with respect to the suggestion that diagnostic matters should be withheld when their disclosure might harm the defendant's chances of rehabilitation, the report noted that this could not be accepted "as a reason for denying disclosure of information not relevant to the point." Id. at 223.

The Committee, while pointing out that there may well be constitutional grounds for requiring disclosure, expressed the thought that the matter should not be exclusively controlled by constitutional considerations. It noted that it was persuaded "as a matter of policy that disclosure of the report ought to be required because such a practice will increase the fairness of the system, because it will increase the appearance of fairness, and because it will assure a greater degree of accuracy in the sentencing determination." Id. at 224. The specific recommendation which was made by the Committee and which was approved in 1968 by the House of Delegates of the American Bar Association was formulated, in pertinent part, in the following terms:

(a) Fundamental fairness to the defendant requires that the substance of all derogatory information which adversely affects his interests and which has not otherwise been disclosed in open court

should be called to the attention of the defendant, his attorney, and others who are acting on his behalf.

(b) This principle should be implemented by requiring that the sentencing court permit the defendant's attorney, or the defendant himself if he has no attorney, to inspect the report. The prosecution should also be shown the report if it is shown to the defense. In extraordinary cases, the court should be permitted to except from disclosure parts of the report which are not relevant to a proper sentence, diagnostic opinion which might seriously disrupt a program of rehabilitation, or sources of information which has been obtained on a promise of confidentiality. * * * Id. at 213-14.

The significant movement towards mandatory disclosure is undoubtedly being influenced not only by the persuasive academic writings but also by the recent Supreme Court decisions which have greatly expanded and strengthened the individual rights of the accused. Thus he is entitled to counsel throughout all critical stages of the proceedings (Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2 d 799 (1963)) including the sentencing. Mempa v. Rhay, 389 U.S. 128, 88 S. Ct. 254, 19 L. Ed. 2 d 336 (1967). He may be entitled to considerable evidential disclosure from the prosecution (see Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2 d 215 (1963); Fed. R. Crim. P. 16; 8 J. Moore, Federal Practice, supra, Ch. 16 (1968); Symposium, "Discovery in Federal Criminal Cases," 33 F.R.D. 47 (1963)) and is of course entitled to be confronted by the witnesses against him. Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2 d 923 (1965). He may not, after conviction on one charge, be sentenced on the basis of another charge on which he was not heard (Specht v. Patterson, 386 U.S. 605, 87 S. Ct. 1209, 18 L. Ed. 2 d 326 (1967)) and, in general, he may not be subjected to "critically important" determinations without meaningful opportunity to be heard and meaningful representation by counsel. Cf. Kent v. United States, 383 U.S. 541, 86 S. Ct. 1045, 16 L. Ed. 2 d 84 (1966) where the Court, in holding that an accused juvenile was entitled (before the entry of a waiver by the Juvenile Court in favor of the District Court) to a hearing including access by his counsel to the pertinent social records

and probation reports, pointed out that the right to representation was not a mere formality but was "of the essence of justice." 383 U.S. at 561, 86 S. Ct. at 1057, 16 L. Ed. 2 d at 97. See In re Gault, 387 U.S. 1, 34, 87 S. Ct. 1428, 18 L. Ed. 2 d 527, 550-51 (1967); Note, supra, 81 Harv. L. Rev. at 828-829.

It is indeed difficult to see how there can be meaningful representation by counsel at sentencing time when there is no disclosure to him of the presentence materials on which the sentence is being based. And surely without such materials he is in no fair position to determine whether an appeal should be taken from the sentence or how to prosecute it if it is taken. Although a right of appellate review of the sentence is not yet generally recognized in the federal courts (but cf. United States v. Wiley, 278 F.2d 500 (7 Cir. 1960)), the academic writings and many state decisions strongly support it. See American Bar Association Project On Minimum Standards for Criminal Justice, Standards Relating to Appellate Review of Sentences at 13-20 (Tent. Draft 1967); Mueller, "Penology on Appeal: Appellate Review of Legal but Excessive Sentences," 15 Vand. L. Rev. 671 (1962). Where there is such right of review the crying need for disclosure is even more evident than elsewhere. See Rubin, "Sentences Must Be Rationally Explained," 42 F.R.D. 203, 217 (1968):

Certainly if the defendant has the right to have an appellate court pass on the validity of his sentence and, in so doing, consider the presentence investigation on which the sentence was based, how can this process operate intelligently unless the defendant knows enough about the report to challenge it where necessary and unless the court has the report in front of it? Certainly if the defendant can raise issues about the report, he has a right to examine it to see whether it is legally adequate in his case. And it seems evident that if the presentence investigation is part of the record on the sentence, then it should be made a part of the record in the appellate court on any review of the sentence.

We come now to the consideration of our own New Jersey history in the field of presentence ...

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