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State v. Braeunig

New Jersey Superior Court, Appellate Division


Decided: March 10, 1976.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RAYMOND BRAEUNIG, PETITIONER-APPELLANT

On appeal from Superior Court, Law Division, reported at 135 N.J. Super. 89 (Law Div. 1975).

Halpern, Crane and Michels.

Per Curiam

[140 NJSuper Page 246]

Defendant was convicted for bookmaking and aiding and abetting bookmaking. He was sentenced to State Prison for a term of two to three years, fined and placed on probation for a period of 12 months following the completion of the custodial sentence.

The State concedes that the sentence imposed was illegal in that the trial judge did not have the power to impose the 12 month probationary term following the State Prison sentence. State v. Pietrowski , 136 N.J. Super. 383 (App. Div. 1975); Bonilla v. Heil , 126 N.J. Super. 538 (App. Div. 1974); State v. Fisher , 115 N.J. Super. 373 (App. Div. 1971). However, at oral argument, defendant requested the matter not be remanded for resentencing, but that we exercise our original jurisdiction and correct the sentence by vacating the 12 month probationary term.

Accordingly, the judgment below is modified so as to vacate the 12 month probationary period imposed. As modified, the judgment below is affirmed.

19760310


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