On certification to the Superior Court, Appellate Division, whose opinion is reported at 208 N.J. Super. 319 (1986).
For affirmance and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Stein, J.
[105 NJ Page 413] In this case, as in State v. O'Connor, 105 N.J. 399 (1987), we consider the relationship between the presumptions of incarceration contained in N.J.S.A. 2C:44-1d and 1e and a term of imprisonment imposed as a condition of probation pursuant to
N.J.S.A. 2C:43-2 b(2). The specific question presented in this appeal is whether the presumption of non-imprisonment applicable to first-time offenders convicted of third- or fourth-degree crimes precludes the imposition of a term of imprisonment as a condition of probation. The Appellate Division held that such a sentence may be imposed, despite the applicability of the presumption against incarceration. 208 N.J. Super. 319 (1986). We agree with that conclusion, and therefore affirm the judgment of the Appellate Division.
In January 1983, pursuant to a plea agreement, defendant entered retraxit pleas of guilty to two charges of conspiracy to promote gambling, a third-degree offense. N.J.S.A. 2C:37-2, 2C:5-2. Defendant also had been indicted on the related charges of third-degree promoting gambling, N.J.S.A. 2C:37-2, third-degree possession of gambling records, N.J.S.A. 2C:37-3, and fourth-degree maintenance of a gambling resort, N.J.S.A. 2C:37-4. The indictments resulted from electronic surveillance of telephone conversations between defendant and several other individuals, in which they discussed the gambling "line" for various sporting events and the collection of gambling debts.
In the plea agreement, the State agreed to move at sentencing to dismiss all charges against defendant other than the two counts of conspiracy to promote gambling, and to seek dismissal of a charge of aiding and abetting brought against defendant's wife. Additionally, the State agreed to recommend that any sentences imposed in connection with the remaining charges be served concurrently. Finally, the agreement provided that the State would not oppose defendant's participation in a work-release program, and would not object to bail pending appeal should defendant decide to contest various pretrial suppression rulings.
On March 11, 1983, defendant was sentenced to concurrent two-year prison terms in connection with the conspiracy counts. Additionally, the sentencing court imposed a fine of $2,000, and
a $25 Violent Crimes Compensation Board penalty. In support of this sentence, the court found the following aggravating circumstances: the fact that "defendant committed [the] crime to make money," that he was "heavily involved [in a] large scale operation," and that this sentence was supported by the "need for deterrence." N.J.S.A. 2C:44-1a. The court found as mitigating factors the fact that this was defendant's first conviction, and that he came from a "good family background." N.J.S.A. 2C:44-1b.*fn1
The Appellate Division vacated defendant's sentence.*fn2 The court noted that the trial court reasonably could have determined that the presumption of non-imprisonment normally applicable to third-degree offenders, see N.J.S.A. 2C:44-1e, had been overcome in this case. 208 N.J. Super. at 323. However, it held that the two-year sentences imposed by the trial court were illegal because they fell short of the three-year minimum for third-degree offenses required by N.J.S.A. 2C:43-6a. Id. at 327. Significantly, the court also ruled that the sentencing judge, on remand, could impose a term of imprisonment of up to 364 days as a condition of probation without a finding that imprisonment is necessary for the protection of the public. Id. We granted certification, 104 N.J. 410 (1986), because this ruling conflicts with the opinion of two other Appellate Division