On certification to the Superior Court, Appellate Division.
For modification -- Chief Justice Hughes, Justices Sullivan, Pashman, Clifford, Schreiber, Handler and Judge Conford. Opposed -- None. The opinion of the court was delivered by Sullivan, J.
Certification was granted in this case, 75 N.J. 19 (1977), to review the action of the Appellate Division modifying the sentence imposed on defendant by the trial judge on the ground that it was manifestly excessive.
Defendant pleaded guilty to a charge of rape and two charges of assault with intent to kill. The charges of assault grew out of defendant's arrest on the rape charge. While he was being questioned at police headquarters about the rape, defendant suddenly seized a gun from one of the officers present (apparently he pulled it from the officer's holster) and attempted to escape. During a struggle with several officers he aimed the gun at them and pulled the trigger several times. Fortunately, the gun was not loaded and defendant was subdued without having injured anyone.
Two indictments were returned against defendant. In one he was charged with three counts of assault with intent to kill, two counts of assault and battery on police officers, one count of escape and one count of threatening to kill. The second indictment charged defendant with one count of rape and one count of private lewdness.
As the result of a negotiated plea, which was accepted by the trial judge, defendant pleaded guilty to the charge of rape and two charges of assault with intent to kill. The remaining charges were dismissed. Following a diagnostic examination which found that defendant did not qualify for treatment under the New Jersey Sex Offender Act, the following sentences were imposed. On each plea of guilty to a charge of assault with intent to kill, defendant was sentenced to State Prison for a term of not less than 10 years nor more than 12 years, the two sentences to be served concurrently. On the plea of guilty to the charge of rape defendant was sentenced to State Prison for a term of not less than 15 years nor more than 20 years, to be served consecutively to the sentences imposed on the assaults with intent to kill.
Regarding the sentence for rape, the judge stated that he was imposing a lengthy term of incarceration because, while
defendant did not qualify for treatment under the Sex Offender Act, he was suffering from an emotional disorder of a schizophrenic, paranoid nature and that extensive psychiatric treatment was needed which should be provided in a custodial setting. The judge added that the sentence was designed to protect society as well as hopefully to rehabilitate defendant.
As to the sentences for the assaults, the judge stated that but for the fact that the gun which defendant "grabbed" was unloaded, the death of two police officers could easily have occurred. The judge added that the sentences for the assaults were designed to protect society and also act as a deterrent to others.
Defendant appealed on the single ground that the sentences imposed aggregating 25 to 32 years in State Prison were manifestly excessive. The Appellate Division agreed. It noted defendant's age of 24 years at the time and a minimal record of prior offenses. Since the policy of the law as set forth in State v. McBride, 66 N.J. 568, 580 (1975) is to reform the youthful offender, the Appellate Division said it was at a loss to understand how meaningful rehabilitation could be accomplished by an aggregate State Prison sentence of 25 to 32 years.
Accordingly, the Appellate Division found that the ends of justice would best be served by modifying each of the sentences to indeterminate terms at the Youth Correctional Institution Complex, the sentence on the rape charge with a maximum of 15 years. All of the sentences were to run concurrently. This Court granted certification to review the State's contention that the modification of sentence, as made, was excessively lenient and an abuse of the appellate function.
At the oral argument of the appeal it was disclosed that defendant has been released from the Youth Complex on parole, his total period ...