On certification to the Superior Court, Appellate Division.
For reversal and reinstatement -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler, Pollock, O'Hern and Garibaldi. For affirmance -- None.
This appeal presents the issue whether a defendant, who at the time of sentencing in the municipal court misrepresents his prior record of convictions, is immune from sentence enhancement when he appeals his conviction to the Superior Court, Law Division, for a trial de novo on the record. No question has been raised on the appeal concerning the defendant's right of allocution or the right to refuse to furnish information about a prior conviction.
In reliance on the statement by defendant's attorney that defendant had no prior record of convictions, the municipal court did not impose a custodial sentence. After a trial de novo on the record, the Law Division found defendant guilty and requested a presentence report that revealed, among other things, convictions for drug-related offenses. Thereupon, the court imposed a custodial sentence. The Appellate Division reversed and reimposed the municipal court sentence.
We granted the State's petition for certification, 93 N.J. 264 (1983), and we now conclude the Law Division properly imposed an enhanced sentence on defendant. Consequently, we reverse
the judgment of the Appellate Division and reinstate the sentence of the Law Division.
Defendant was charged in the Fairfield Municipal Court with attempting to cause and purposefully causing bodily injury to another, N.J.S.A. 2C:12-1(a)(1), and attempting by physical menace to put another in fear of imminent bodily injury, N.J.S.A. 2C:12-1(a)(3). The charges arose out of an incident in which defendant met a woman in a bar and went with her to his car where the offenses occurred. After a trial in the municipal court, the judge merged the charges and found defendant guilty of simple assault.
Defendant subsequently appeared before the municipal court for a consolidated sentencing on this conviction and on a separate conviction for an unrelated assault and battery. At the sentencing, defendant's counsel represented that defendant had never been convicted of any crime in the State of New Jersey and that defendant had no prior disorderly persons convictions. After stating that he would have considered imposing a custodial sentence if Pomo had a prior record, the municipal court judge imposed a suspended sentence of 30 days in the County Jail, a one-year period of probation, and a fine of $500, with additional payments of $25 for costs and $25 to the Violent Crimes Compensation Board.
In fact, defendant's prior court history included a record for vandalism and break and entry as a juvenile and convictions for drug-related offenses as an adult. In March, 1975, defendant received a conditional discharge, see N.J.S.A. 24:21-27, for possession of marijuana. Later, in September, 1975, he was convicted for possession and distribution of marijuana; that conviction led to a 360-day sentence to the Bergen County Jail, with 315 days suspended, and a $300 fine.
In this case, Pomo appealed his municipal court conviction to the Superior Court, Law Division, for a trial de novo on the record. R. 3:23-8. The judge found defendant guilty and ordered a presentence report, which revealed his convictions for
possession and distribution of marijuana. The report stated further that defendant was under indictment for sexual assault, contrary to his assertion to the investigating probation ...