Conford, Meanor and Botter. The opinion of the court was delivered by Botter, J.s.c., Temporarily Assigned. Conford, P.J.A.D. (dissenting).
Appellant McBride pleaded guilty to three separate armed robberies committed on the night of November 12, 1972, and was sentenced to three concurrent terms of 15 to 22 years. A fourth indictment charging possession on the same date of a revolver, without a permit, was dismissed. This dismissal, as well as the concurrent running of the terms, accorded with the recommendation promised by the prosecutor when the guilty pleas were entered. On this appeal McBride asserts that the sentence is excessive.
When the crimes were committed McBride was 18 1/2 years of age. On the evening in question he met two of his cousins, Willie Spinks, age 18, and James Brown, age 17, and a friend named Anthony Thomas, age 18, and the three agreed to "pull a job" with McBride. Around 7:30 P.M. they drove to Neptune and robbed a gas station attendant of $30 at gun point, McBride holding his loaded .22 revolver and Spinks an automatic handgun. Thereafter they drove to Bradley Beach where McBride, Spinks and Thomas entered a Cumberland Farms store. There McBride and Thomas each pulled out the handguns and the register was emptied of $70. Later, around 10:15 P.M. in Red Bank they robbed another Cumberland Farms store of $25, with McBride holding the gun and Spinks waiting in the car. From there they drove to a diner where their car was identified and all were apprehended.
Of the four only McBride cooperated with the police, waived his rights and signed detailed confessions as to each robbery. Thereafter, McBride, Spinks and Brown pleaded guilty. Spinks also pleaded guilty to a robbery of a liquor store in Neptune, committed six days earlier, on November 6. Spinks was sentenced to four concurrent sentences of 15 to 25 years in State Prison. An indictment charging unlawful
possession of a firearm was also dismissed, all in accordance with recommendations agreed to be made by the prosecutor.
Spinks appealed from his sentence and the Appellate Division ordered a reduction to a minimum of 10 and a maximum of 15 years in State Prison. A review of that sentence on certification by the Supreme Court is now pending. In reducing the sentence this court noted that Spinks was 18 when the crimes were committed, that he had no prior criminal record, that no one was injured during the robberies, and that prison authorities had transferred him to the Youth Reception and Correction Center at Yardville.
On this appeal McBride argues that these were his first nonjuvenile convictions, that for his three robberies he should not be sentenced to a longer term than Spinks for his four, that he cooperated with authorities, that his intelligence, achievement ability and employment prognosis were poor, and that the trial judge said that the purpose of the sentence was "punitive," ignoring rehabilitative purposes.
We agree that the three concurrent terms of 15 to 22 years in State Prison for this one night's spree of three armed robberies is excessive, serious as the crimes were. Defendant's age and immaturity, including his cooperation with the police, and his pleas of guilty, deserve consideration. Against him is the fact that he held a gun in each robbery, as well as his juvenile record. This consists of two breaking, entry and larceny convictions and one shoplifting conviction at age 13, one breaking and entering conviction at age 14, and a charge of threatening to shoot a dog at age 16 while on parole. He has been on probation, spent time in the State Home for Boys, from which he was paroled on August 15, 1969, and left school in May 1970 while in the 9th grade. Since then he has worked for six months in 1971 at a Howard Johnson's Restaurant and one month in the summer of 1972 at a plastics company. He states he has used marijuana but no other drugs.
We consider juvenile offenses for purposes of sentence, without equating them to adult crimes. Similarly, McBride's poor work record is to be evaluated in the light of his limited employment opportunity, due to his level of education and lack of skills. But we note, also, charges of misconduct resulting in disciplinary action even in his school record.
Evaluating McBride for sentencing, independent of the sentence imposed on Spinks, we consider appropriate a concurrent sentence of not less than 7 years nor more than 12 in the New Jersey State Prison for each armed robbery conviction, with a recommendation for evaluation of appellant for transfer to a youth correctional institution. (This sentence is composed of 4 to 7 years for each robbery, plus 3 to 5 years while armed, consecutively, or a total of 7 to 12.) Credit for time served on these charges before and after conviction shall be allowed. The consideration normally due to the sentence imposed by the trial judge is diminished by his sole statement as to the purpose of the sentence, namely, that it is "punitive." The principal purposes should be rehabilitation as well as deterrence, especially when dealing with a youthful offender.
For purposes of rehabilitation it is preferred that an 18-year-old offender be sentenced to the Youth Reception and Correction Center, Yardville.*fn1 State v. Horton, 45 N.J. Super. 44 (App. Div. 1957). Here the choice is between State Prison, where the court is assured of a minimum period of incarceration, which may be less than ...