Kilkenny, Halpern and Lane. The opinion of the court was delivered by Lane, J.A.D. Halpern, J.A.D. (dissenting).
Defendant pleaded guilty to an indictment for possession of heroin (N.J.S.A. 24:18-4). He was sentenced to the New Jersey Reformatory for Males at Yardville for a minimum term of 3 years and fined $25. He appeals contending that the sentence was illegal and excessive.
The initial contention that the sentence was illegal is based upon N.J.S.A. 30:4-148, which provides that a sentence to the reformatory may not impose a minimum
period of detention. This point has been decided adversely to the defendant in State v. Pallitto , 107 N.J. Super. 96 (App. Div. 1969), certif. den. 55 N.J. 309 (1970), and State v. Ammirata , 104 N.J. Super. 304 (App. Div. 1969).
Defendant further argues that at any rate the imposition of a 3 year minimum to the commitment to the reformatory is illegal.
N.J.S.A. 30:4-148 deals with sentences to the reformatory:
The courts in sentencing to the reformatory shall not fix or limit the duration of sentence, but the time which any such person shall serve in the reformatory or on parole shall not in any case exceed five years or the maximum term provided by law for the crime for which the prisoner was convicted and sentenced, if such maximum be less than five years; provided, however , that the court, in its discretion, for good cause shown, may impose a sentence greater than five years, but in no case greater than the maximum provided by law, and the commitment shall specify in every case the maximum of the sentence so imposed. The term may be terminated by the board of managers in accordance with its rules and regulations formally adopted.
N.J.S.A. 24:18-47 establishes the punishment for narcotic violations. In part it provides:
Any person as in this chapter defined * * *
(c) Who violates any other provision hereof shall be guilty of a high misdemeanor and shall be punished as follows:
(1) for a first offense, by a fine not exceeding $2,000.00 and by imprisonment with hard labor, for a term of not less than 2 years nor more than 15 years; * * *
This court in State v. Ammirata, supra , discussed the relationship between N.J.S.A. 30:4-148 ...