On appeal from Superior Court of New Jersey, Law Division, Burlington County.
Fritz, Polow and Joelson.
While defendant's attack employs a variety of mortars and launching pads, essentially this is an appeal asserting solely that the sentence imposed upon defendant is excessive because a custodial term is included. We have reviewed the several arguments put forth in the brief in chief and the reply brief of defendant. We are loath to say that any is frivolous. On the other hand, none of these seems sufficient by itself or in combination with the others to warrant the wholesale intrusion upon the articulately exercised discretion of the sentencing judge which would be necessary for a reversal.
Put another way, in order to reverse it would be necessary for us to concede substantial limitations upon the admittedly discretionary function of sentencing. This concession would require giving overriding effect to such considerations as an unexpressed understanding of defendant with a prior attorney as to what the judge taking the plea thought the negotiated plea was, irrespective of the words which were used by both State and defendant in expressing this plea on the record. Or to a prior impressive employment history and the absence of any previous participation in criminal events. Or to the doubtful quality of defendant's health and the recommendation of the probation
officer that the sentence imposed be one of probation coupled with a lengthy suspended sentence. Or to the willingness of defendant to cooperate in the prosecution of others. Irrespective of whether we view each of these alone, in combination or in the aggregate, we think we should not assign it or them a peremptory position. Accordingly, we are unwilling to reverse.
Woven throughout defendant's ad hominem presentation is yet another attack on the forthrightness of State v. Ivan , 33 N.J. 197 (1960). The substance of this is that, as was noted in State v. Souss , 65 N.J. 453 (1974), Ivan was never intended inexorably to mandate a custodial sentence. The argument is not apposite here, because irrespective of what else the sentencing judge might have said, he indicated his agreement with that proposition. He said:
I want to dispel that I thought that at the time of the original sentencing I was under the impression that I could not suspend sentence. I certainly was aware that I could have done so and imposed a five year probationary term, a substantial fine, and was not bound to incarcerate. Carceration [ sic ] was imposed for reasons which I stated at considerable length on the record.
With a sensitivity equal to that with which we have considered defendant's several arguments, we note as well the portion of the record which deals with defendant's post-negotiation but pre-sentence understanding of that which might be in store:
THE COURT: Do you realize that you could receive anything up to --
Is it three years in prison, gentlemen?
[DEFENDANT'S ATTORNEY]: And a $25,000.00 fine. This is a crime in the third degree ...