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State v. Richardson

Decided: December 23, 1971.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MELVIN RICHARDSON, DEFENDANT-APPELLANT



Sullivan, Leonard and Carton. The opinion of the court was delivered by Leonard, J.A.D.

Leonard

Defendant pleaded guilty to a two-count indictment charging him with robbery (N.J.S.A. 2A:141-1) while having in his possession a revolver (N.J.S.A. 2A:151-5), and to an indictment charging him with unlawful possession of heroin (N.J.S.A. 24:18-4). On the first he received a 7-10 year State Prison sentence for the robbery and a consecutive 2-3 year sentence for being armed. On the second he was given a concurrent 2-3 year term.

Primarily, defendant asserts that the sentences were illegal because a presentence investigation and report was not made and submitted to the court before the imposition of sentence, as is mandated by R. 3:21-2.

Defendant pleaded on November 16, 1970. Two days later a probation officer visited him in jail to interview him for a presentence investigation. Defendant indicated that he "did not choose to answer any questions, had nothing to say, and he declined to discuss the matter with this officer." The officer submitted to the sentencing judge a "Supplemental Report" in which he noted solely the above facts and then stated that "[B]ecause of the defendant's reluctance to provide needed information, this Supplemental Report is submitted in the place of a full and complete presentence investigation."

Defendant was sentenced on December 1, 1970. Preliminarily, the judge asked him whether he refused to answer any questions as was reported to him. Defendant asserted that the probation officer asked him if he had anything to say and he replied "No." The court inquired whether he would then talk to the probation officer and suggested that sentencing might be deferred for the completion of a proper presentence report. However, defendant, in spite of his attorney's advice that such course of action might be helpful to him, replied that he was not interested and that he wished to be sentenced that day without such a report. Thereupon, the above-noted sentences were imposed.

The State's first contention is that a presentence investigation was conducted and the "Supplemental Report" filed with the court was, in view of defendant's lack of cooperation, a compliance with R. 3:21-2 and N.J.S.A. 2A:168-3. We disagree.

"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." State v. Kunz , 55 N.J. 128, 132 (1969).

The investigation should make available to the sentencing judge a sound and complete knowledge of defendant's character, background, physical and mental make-up and all other pertinent factors. Id. at 147.

N.J.S.A. 2A:168-3 mandates that the probation officers "shall fully investigate and report * * * on the circumstances of the offense, criminal record, social history and present conditions * * *." (Emphasis added). We are aware that there is no requirement that the officer "exhaust all possible sources of information." State v. Vassalluzzo , 114 N.J. Super. 153, 154-155 (App. Div. 1971), aff'd 58 N.J. 227 (1971). Nevertheless, preparation of a good report requires, among other things, that he interview the accused as well as accusers, summarizing their respective versions of the affair. State v. Leckis , 79 N.J. Super. 479, 486 (App. Div. 1963). Members of a defendant's family, his employers and associates, are other possible sources of pertinent information.

Here, the refusal of defendant to cooperate with and give a statement to the probation officer, did not excuse the latter from utilizing other sources and otherwise completing his investigation and report in the manner as above indicated, noting therein defendant's lack of cooperation.

Alternatively, the State argues that defendant, by his conduct, waived the right to a ...


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