On appeal from Monmouth County Court.
Seidman and Botter. The opinion of the court was delivered by Botter, J.A.D.
Defendant was convicted in a jury trial of robbery (N.J.S.A. 2A:141-1) while armed (N.J.S.A. 2A:151-5) committed on September 8, 1975 at a tavern in Asbury Park. Thereafter, as directed by the sentencing judge pursuant to N.J.S.A. 2A:85-13, the county prosecutor filed an accusation charging defendant with being a multiple offender, having been convicted previously of the crimes of robbery while armed in Essex County in 1966 and breaking and entering with intent to steal and larceny in Monmouth County in 1973. After having been found guilty in a bench trial on the accusation, sentence was imposed on defendant as a multiple offender. N.J.S.A. 2A:85-8 (second offense) and N.J.S.A. 2A:85-9 (third offense).
Defendant was sentenced to State Prison for a minimum of 12 years and a maximum of 15 years on the robbery conviction and a consecutive term of not less than 8 nor more than 10 years was imposed for the armed feature. An additional 25-year term was imposed upon defendant as a multiple offender, making the aggregate sentence 20 to 50 years.
The first point urged on behalf of defendant on this appeal is that the out-of-court identification of defendant by the witness John Martin, one of the robbery victims, should have been suppressed as the unreliable product of impermissible suggestion and that his in-court identification should also have been suppressed as lacking an independent basis. We disagree. As the trial judge found, Martin's identification was primarily that of the shirt worn by defendant at the time of the offense which he was also wearing when apprehended shortly thereafter and when confronted by Martin at police headquarters. Martin simply identified the defendant as the individual who was wearing the shirt at the time of the robbery in the tavern and when he saw him thereafter at police headquarters. We find no error in the admission of this testimony.
Defendant also contends that his conviction and sentencing as a multiple offender violates the separation of powers doctrine incorporated in N.J. Const. (1947), Art. III, par. 1.*fn2 The contention is that the prosecution of crime is a function entrusted to the Executive Branch of our State Government and that the judiciary should play no role in determining whether a defendant should be prosecuted as a multiple offender. Defendant contends that:
It is not inappropriate for the Legislature to authorize the sentencing judge to activate charges under the multiple offender statutes when it appears to the judge "that the offenses resulting in such conviction are such as to warrant the imposition of a [greater] penalty * * *." N.J.S.A. 2A:85-13. As we said in State v. Jennings , 126 N.J. Super. 70, 79-80 (App. Div.), certif. den. 60 N.J. 512 (1972), the court's invocation of the multiple offender laws is "merely a phase of the permissible exercise of discretionary judgment" as to the appropriate punishment for a particular offender. The statute authorizes this procedure when the court is of the opinion that the current offense warrants the imposition of a greater penalty than the maximum that could be imposed for one not a multiple offender.
Since the sentencing of a defendant is the exclusive obligation of the judiciary, it is appropriate to authorize the judiciary to require the institution of charges under the multiple offender law preliminary to the exercise of that function. Thus, we reject defendant's contention that the exercise of this function was improperly transferred to the judiciary. See R. 3:21-4(d).
Defendant's final contention is that the sentences imposed upon him were manifestly excessive and unduly punitive and constitute an abuse of discretion. Before considering this contention we have questioned the legality of the sentence, raising the issue on our own motion, cf. State v. Christener ,
Defendant was sentenced to a term of 12 to 15 years for the robbery pursuant to N.J.S.A. 2A:141-1. He was given a consecutive sentence of 8 to 10 years for being armed pursuant to N.J.S.A. 2A:151-5. ...