Goldmann, Leonard and Fritz. The opinion of the court was delivered by Goldmann, P.J.A.D.
Three indictments, respectively charging defendant with working for a lottery business (N.J.S.A. 2A:121-3), bookmaking (N.J.S.A. 2A:112-3), and possession of lottery slips (N.J.S.A. 2A:121-3), were consolidated for trial and resulted in jury verdicts of guilty on all three charges. The court sentenced him to State Prison terms of 2-3 years on each charge, to be served concurrently, and additionally imposed a $500 fine on each charge, defendant to stand committed until the fine was paid. He appeals.
The first attack directed at the convictions is that the material seized from defendant at his place of business when the police entered and searched the premises pursuant to a search warrant, should not have been admitted in evidence because the State failed to present sufficient proof of chain of possession. There was no mistaken exercise of discretion on the part of the trial judge in overruling the defense objection to the State's introduction of the exhibits in evidence. He correctly relied on State v. Brown , 99 N.J. Super. 22 (1968), certif. den. 51 N.J. 468 (1968), where we said:
See also, State v. Johnson , 90 N.J. Super. 105, 113 (App. Div. 1965), aff'd 46 N.J. 289 (1966). In ruling on defendant's objection, the trial judge detailed his reasons at some length. We agree with those reasons, which led to the conclusion that no tampering with the evidence had occurred and that the chain of possession had been established.
Advanced as plain error (former rule R.R. 1:5-1(a), now R. 2:10-2), is the claim that the trial judge erred when he instructed the jury to exclude from its deliberations certain testimony that had previously been stricken from the record. Judicial discretion was properly exercised; there was no error. The admonition was given emphatically, and properly so because, considering the nature of the stricken testimony (by a detective regarding telephone calls received at defendant's shop while the police were there) and its probable impact on the jury, a strong and detailed instruction to disregard that testimony was appropriate and necessary. At the close of the charge defense counsel affirmatively stated that he had no objection.
Finally, defendant contends that the sentence was manifestly excessive and not authorized by statute. This claim is directed to the imposition of a $500 fine on each charge, with the direction that defendant was to stand committed until the fines were paid. The argument made is that N.J.S.A. 2A:85-7 provides for a maximum sentence of three years for a crime of the type charged; that N.J.S.A. 2A:166-16 states that where, as part of a sentence of imprisonment, the court orders that the prisoner stand committed until the fine and costs are paid, the prisoner
shall receive credit against the amount of the fine and costs at the rate of $5 for each day of confinement, and that the total fines of $1,500 would mean that defendant would have to remain in prison for not only three years but 300 days additional if unable to pay the fines. Defendant's contention that he has in effect been sentenced to a maximum of four years' imprisonment is misdirected.
N.J.S.A. 2A:85-7, to which defendant refers, does not merely provide that a person found guilty of a misdemeanor may be imprisoned for not exceeding three years; the language is that he "shall be punished by a fine of not more than $1,000 or by imprisonment for not more than 3 years, or both."
N.J.S.A. 2A:166-16, last amended by L. 1963, c. 142, § 2 (the amendment merely increased the $3 rate to $5) states:
Whenever it shall appear that a person is confined in a State penal or correctional institution by reason of default in the payment of fines and costs of prosecution and wherein the committing court, as part of the sentence of imprisonment, ordered that the prisoner stand committed until such fine and costs are paid, such prisoner shall be given credit against the amount of such fines and costs at the rate of $5.00 for each day of confinement. When the prisoner shall have been confined for a sufficient number of days to establish credits equal to the total aggregate amount of such fines and costs, and is not held by reason of any other sentence or commitment, he shall be discharged from imprisonment by the chief executive officer of the State penal or correctional institution wherein he is so confined.
As the statute has been construed -- see, for example, State v. Lavelle , 54 N.J. 315 (1969) -- if the fine has not been paid by the time defendant has served at least the minimum or been paroled by the State Parole Board, he must continue in prison until he has "worked off" the fine at the rate of $5 for each day of confinement. In concurring in the Lavelle holding, Chief Justice Weintraub spoke of the fine as a proper "plus" penalty.
The United States Supreme Court only recently addressed itself to an aspect of this question in ...