For affirmance as modified -- Chief Justice Hughes, Justices Jacobs, Mountain, Sullivan, Pashman and Clifford and Judge Kolovsky. For reversal -- None. The opinion of the Court was delivered by Sullivan, J.
This appeal involves a claim of excessive sentence. Defendant was convicted of assault with intent to commit robbery, a violation of N.J.S.A. 2A:90-2; committing the assault when armed, a violation of N.J.S.A. 2A:151-5; and possession of a weapon after having been convicted of a serious crime, a violation of N.J.S.A. 2A:151-8.*fn1 He was sentenced to State Prison as follows: for the assault with intent to commit robbery, a sentence of not less than 11 nor more than 12 years; for committing the assault when armed, an additional sentence of not less than 9 nor more than 10 years to be served consecutively to the sentence for assault; for possession of a weapon after having been convicted of serious crime, a sentence of not less than 2 nor more than 3 years, to be served consecutively to the other two sentences. The foregoing sentences aggregated 22 to 25 years.
On defendant's appeal the Appellate Division affirmed the convictions including the sentences imposed. This Court granted certification, 65 N.J. 558 (1974), solely on the issue of defendant's sentence.
On June 18, 1972, defendant, then 23 years of age, and two companions attempted the armed robbery of a supermarket. A police officer who was in the store at the time foiled the attempted robbery, disarmed defendant who was carrying a handgun and placed defendant and one of his companions under arrest. A third participant escaped.
Defendant originally pleaded not guilty to the several charges on which he was indicted. He then changed his plea to guilty, and still later was allowed to withdraw such plea and reinstate his original plea of not guilty. He stood trial by jury in April 1973 and was convicted of the charges heretofore stated.
The trial judge in imposing sentence on defendant made the following comment:
[T]he Court views this offense for which the jury has found you guilty with considerable concern. I think it's a very serious offense. And when you play with those kind of stakes, you either win or lose. You win big, or you lose big. You're going to lose big.
The presentence report showed that defendant's record included a prior conviction for armed robbery. He has a history of heroin addiction and admitted to the use of up to 15 bags daily. His parole officer reported that defendant had a very negative attitude, had no response to supervision nor desire to adjust to the norms of society. The report recommended that a suitable period of incarceration be imposed.
Defendant argues that the trial judge imposed a harsh series of consecutive sentences for what was in reality a single criminal act and that the aggregate of 22 to 25 years was manifestly excessive and unduly punitive.
We find no abuse of discretion in the imposition of consecutive sentences on the count of assault with intent to commit robbery, and the count of committing the assault while armed. N.J.S.A. 2A:151-5 provides that "any person who commits * * * an assault, * * * when armed * * * shall, in addition to the punishment provided" for the assault,
be punished for being armed. Under the statute being armed at the time is an aggravating factor over and above the seriousness of the crime committed, and ...