For affirmance -- Chief Justice Hughes, Justices Mountain, Sullivan, Clifford and Schreiber and Judge Conford. For reversal and remandment -- Justice Pashman. Pashman, J. (dissenting).
This appeal, brought here by virtue of a dissent in the Appellate Division, R. 2:2-1(a)(2), raises only the question of the propriety of sentences of the defendant to State Prison on narcotics distribution and possession charges for aggregate terms of 5-7 years. The dispute in the Appellate Division was as to whether defendant, a 22 year old heroin addict never previously incarcerated, should more appropriately have been sentenced to the Youth Correctional Institution Complex (Yardville), for which he was eligible, than to State Prison.
We affirm the judgment of the Appellate Division for the reasons set forth in its opinion, 146 N.J. Super. 231, A.2d (1975), supplemented by the following comments.
There is a wide area of discretion in the sentencing judge, and the sentence in the present instance might well, for the reasons set forth in Judge Botter's dissenting opinion, have been appropriately made to Yardville. But sentence review in this State is by no means a de novo exercise of the
sentencing function by the appellate court. Only where the sentence is "manifestly excessive" should it be revised on appeal. State v. Bess, 53 N.J. 10, 18 (1968). By the same token, the choice of institution of incarceration by the sentencing judge should not be disturbed on appeal unless manifestly inappropriate or unsuited to the corrective purposes indicated by an appraisal of both the offender and the offense. See State v. Spinks, 66 N.J. 568, 575-576 (1975); State v. McBride, 66 N.J. 577, 580 (1975). The seriousness of two of the instant offenses -- distribution of heroin -- of itself would repel any notion of manifest inappropriateness of a sentence to State Prison therefor.
We note that although sentencing here took place prior to our decision in State v. McBride, supra, the sentencing judge in his written reasons for sentence met the spirit of the direction therein that all sentences of youthful offenders eligible for Yardville be to that institution or that the reasons for sentencing indicate why not, and why the sentence to State Prison is deemed more appropriate. 66 N.J. at 580-581.
PASHMAN, J. (dissenting). This case requires the Court to again consider the application of guidelines which it has endorsed for sentencing youthful offenders. I do not believe that the result reached today, or the analysis which the majority employs, will aid future trial judges faced with the problem of deciding whether to sentence an eligible defendant to the Youth Correctional Institution Complex (Yardville). Though I recognize the difficulty which sentencing entails, particularly where a young person is involved, the importance of rehabilitation leads me to believe that the sentence imposed in this case was excessive. I regard the trial judge's reasons for rejecting an indeterminate sentence at Yardville as inadequate and would reverse the Appellate Division and remand the case for resentencing in accordance with Judge Botter's dissent.
This Court considered the problems inherent in sentencing youthful offenders in State v. McBride, 66 N.J. 577 (1975). There Justice Sullivan wrote for a unanimous Court:
Under N.J.S.A. 30:4-147 any male between the age of 15 and 30 years who has been convicted of a crime punishable by imprisonment in the State Prison, who has not previously been sentenced to a State Prison in this or any other state, may be committed to the Youth Correctional Institution Complex. The advantages, for rehabilitative purposes, of sentencing to this Complex are compelling and have been outlined in the dissenting opinion of Judge Conford. A youthful offender eligible for sentence to the Complex should ordinarily be sentenced there unless good and substantial reasons exist for not so ...