Decided: April 12, 1973.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WILLIAM CHARLES KORZENOWSKI, DEFENDANT-APPELLANT
Fritz, Lynch and Trautwein.
[123 NJSuper Page 455]
A plea bargain was struck in this gambling case. A careful comparison of the sentence with the bargain as disclosed in the plea transcript shows no breach. Indeed, defendant does not so contend but rather urges error on the grounds that
1. The sentence was excessive and unconstitutional because the court did not particpiate in the bargaining, thereby depriving defendant of effective assistance of counsel under the Sixth Amendment of the United States Constitution.
2. A Supreme Court directive excluding court participation in the bargain is unconstitutional and in this instance, prejudicial to the defendant.
3. N.J.S. 2A:112-3 is unconstitutional since it discriminates against bookmakers as a class in that they are exposed to a five-year maximum prison term and a fine of up to $5,000. while all other classes of misdemeanants can receive up to three years imprisonment and a $1,000. fine under N.J.S. 2A:85-7.
Defendant's net custodial sentences ran concurrently for three to five years with a $5,000 fine on two of the five counts to which he pleaded guilty.
As to defendant's contentions referrable to the absence of participation by the court in the bargaining procedure, there is clear authority mandating nonparticipation. United States v. Gilligan , 256 F. Supp. 244, 254 (S.D.N.Y. 1966); State v. Thomas , 61 N.J. 314, 321 (1972); State v. Taylor , 49 N.J. 440, 455 (1967); State v. Poli , 112 N.J. Super. 374, 379 (App. Div. 1970). Moreover, we conclude [123 NJSuper Page 456] the directive in question*fn1 merely iterates and implements these rulings for the benefit of trial courts.
[123 NJSuper Page 457]
With respect to the sentence being excessive and an abuse of judicial discretion, we have examined this contention within the totality of all of the circumstances revealed by the record and find no clear showing of the same. State v. Cox , 101 N.J. Super. 470 (App. Div. 1968), certif. den. 53 N.J. 510 (1969); State v. Provoid , 110 N.J. Super. 547 (App. Div. 1970).
Finally, we likewise conclude that bookmakers suffer no discrimination of constitutional dimensions in the area of statutory limits on sentences when compared with other misdemeanants. State v. Hampton , 61 N.J. 250 (1972); State v. Smith , 58 N.J. 202 (1971).