On appeal from Superior Court, Law Division, Hudson County.
Joelson and Trautwein. The opinion of the court was delivered by Joelson, P.J.A.D.
[195 NJSuper Page 586] Pursuant to a plea agreement, defendant pled guilty to a first degree robbery, N.J.S.A. 2C:15-1(b), in which he and two codefendants robbed another youth of a moped, helmet, and air pump. Under the terms of the plea agreement, the State agreed to recommend that any custodial term imposed should ". . . be to Yardville and not to exceed ten years." In addition, the State agreed to dismiss other counts of the indictment against defendant, which counts stemmed from the same criminal episode as the robbery. The State also stipulated that the
Graves Act, N.J.S.A. 2C:43-6c, was inapplicable because the gun used by defendant or one of the codefendants, and described by defendant and one of the codefendants as a "toy gun," had not been recovered and could not be proved to be an operable handgun. The trial judge sentenced defendant to the custody of the Commissioner of the Department of Corrections at Yardville for an indeterminate term not to exceed seven years. This is defendant's accelerated appeal from his sentence.*fn1 We reverse and remand.
Due to traumatic injuries which he sustained at the age of five, defendant suffers from left hemiplegia, meaning that he is partially paralyzed on the left side. Additionally, he suffers frequent seizures of the grand mal type. His seizures are treated by the medication phenobarbital, although not totally controlled by this medication. The pre-sentence report states that "[i]f the Graves Act were not applicable, this writer would recommend a probation term, to include occupational therapy in a sheltered workshop." The pre-sentence report reveals that ". . . defendant attended A. Harry Moore Laboratory School . . . and Hudson County Vo-Tech School, graduating in 1982," and that "he performed well in school." Attached to the pre-sentence report is a letter to the probation officer from the School Social Worker of the A. Harry Moore Laboratory School, expressing the opinion that a jail sentence can neither "deter or rehabilitate" defendant and stating that "[a]lthough he has had an uneven success rate with a sheltered workshop placement, I do feel strongly that he is a candidate for a rehabilitative sheltered workshop setting such as may be offered in New York City."
At the time of sentence, the trial judge referred to State v. Roth, 95 N.J. 334 (1984), and said:
Frankly, if it weren't for the Roth Case, I would probably follow -- I would follow the recommendation of the Probation Department in this case. As I read
the Roth Case, I don't have the authority to do so. I have to give a custodial sentence under the law. If the defendant wants to take an appeal and clarify the Roth Case, that is up to the defendant.
As I see it, I have to give it a custodial sentence. I'm going to impose the presumptive custodial sentence for a second-degree offense.
Furthermore, in the judgment of conviction the trial judge gave the following statement of reasons pursuant to R. 3:21-4(e):
1. The nature of the offense, 1st degree robbery, ...