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State v. Ribbecke

Decided: May 25, 1982.

STATE OF NEW JERSEY, PLAINTIFF,
v.
KEVIN ROY RIBBECKE, DEFENDANT



Coburn, J.s.c.

Coburn

The question presented is whether a young adult offender who committed manslaughter by firearm may be sentenced to an indeterminate term at the Youth Correctional Institution Complex notwithstanding the minimum terms and parole ineligibility provisions of N.J.S.A. 2C:43-6 c (commonly known as the Graves Act).

Defendant Kevin Roy Ribbecke, age 24, was indicted for aggravated assault (N.J.S.A. 2C:12-1 b(4)), possession of a gun for unlawful purposes (N.J.S.A. 2C:39-4), and aggravated manslaughter (N.J.S.A. 2C:11-4(a). A jury found defendant not

guilty of the assault and possession charges and failed to reach agreement on the aggravated manslaughter charge after extensive deliberations. Thereafter, the State and defendant submitted a plea arrangement for the court's approval: in return for defendant's plea of guilty to the lesser included offense of reckless manslaughter, the prosecutor agreed to recommend that no parole ineligibility term be imposed.

Kevin Ribbecke and the victim, Robert Lucas, were best friends. On September 20, 1981 they were celebrating the birth of Kevin's first child. Kevin had recently passed an examination for the Bayonne Police Department and at the beginning of the previous day had taken a test for the Bayonne Fire Department. Shortly before this incident, in full accordance with the law, he had purchased a revolver and bullets. These young men agreed that Robert should take photographs of Kevin holding the revolver with the barrel pointed towards Robert so that the tips of the bullets would show. Kevin loaded five bullets, leaving open the chamber aligned with the barrel. During the evening one of the young men cocked the gun, neither realizing that this action would bring a live round into shooting position. The friends continued eating and drinking alcoholic beverages into the early morning hours. Then, without purpose to harm or knowledge that his conduct would result in harm, Kevin, admittedly acting recklessly, but not under circumstances manifesting extreme indifference to the value of human life, so handled the weapon that a single bullet fired, killing Robert. Kevin immediately called the police. Until this terrible event defendant Kevin Ribbecke had led a life free of crime and had enjoyed in the community an excellent reputation for being a law-abiding and honest person.

Manslaughter committed with a gun is one of the offenses included within the Graves Act. The applicable portion of this law provides that a violator "shall be sentenced to a term of imprisonment" with a "minimum term" which "shall be fixed at, or between, one-third and one-half of the sentence imposed by the court or 3 years, whichever is greater . . ., during which the

defendant shall be ineligible for parole." N.J.S.A. 2C:43-6 c. Were this the only relevant provision of law, this court would be obliged to reject the plea recommended by the State. However, defendant is less than 26 years of age and N.J.S.A. 2C:43-5 states that "any person" within that category who has committed a crime "may be sentenced to an indeterminate term" at the appropriate reformatory; and N.J.S.A. 30:4-148 instructs that when sentencing pursuant to ยง 43-5 the court "shall not fix or limit the duration of sentence." The Graves Act does not expressly provide that a court may not sentence a young adult pursuant to N.J.S.A. 2C:43-5. Thus, before sentence can be imposed on this youthful offender the court must resolve the conflict between the Graves Act and the youthful offender laws.

The problem of reconciling N.J.S.A. 30:4-148 with statutes mandating minimum terms of imprisonment is hardly new to this State. State v. Hopson, 60 N.J. 1 (1971); State v. Lavender, 113 N.J. Super. 576 (App.Div.1971); State v. Brozi, 125 N.J. Super. 485 (App.Div.1973); State v. Prewitt, 127 N.J. Super. 560 (App.Div.1974); State v. Robinson, 139 N.J. Super. 58 (App.Div.1976).

Hopson involved a section of the narcotics laws which then required that a defendant "shall" be punished by "imprisonment with hard labor, for a term of not less than two years nor more than 15 years." The trial judge had sentenced defendant to the Youth Correctional Institution Complex for a minimum term of years. Essentially following State v. Ammirata, 104 N.J. Super. 304 (App.Div.1969), and State v. Pallitto, 107 N.J. Super. 96 (App.Div.1969), certif. den. 55 N.J. 309 (1970), a majority in the Appellate Division held that the trial court was required to sentence defendant to a minimum of two years, notwithstanding the provisions of N.J.S.A. 30:4-148. State v. Hopson, 114 N.J. Super. 146 (App.Div.1971). The Supreme Court reversed the judgment of the Appellate Division "for the reasons given by Judge Halpern in his dissenting opinion." State v. Hopson, supra, 60 N.J. at 2. Judge Halpern had made the following observations:

The Ammirata result was adopted in Pallitto, supra, and is being followed by the majority of this court. In my mind such construction is unwarranted. It is contrary to the approved and recognized philosophy that reformatory sentences are designed to correct and ...


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