On appeal from and on certification to the Superior Court, Appellate Division, whose opinion is reported at 215 N.J. Super. 84 (1987), State v. Gardner. On appeal from and on certification to the Superior Court, Appellate Division, State v. Schwarz and State v. Van Nostrand. Cathleen Russo Delanoy, Deputy Attorney General, argued the cause for appellant and cross-respondent (W. Cary Edwards, Attorney General of New Jersey, attorney).
For remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi, and Gary S. Stein. For reversal -- None. The opinion of the Court was delivered by Clifford, J.
Defendants, volunteer firemen, indicted for the second-degree crime of aggravated arson, pleaded to the third-degree offense of arson. As first offenders they were therefore entitled to the presumption of non-incarceration. The trial court, concluding that the presumption had been overcome, sentenced defendants to custodial terms.
A majority in the Appellate Division, in the only one of the three opinions below that is reported, agreed that the presumption against imprisonment had been overcome, but concluded nevertheless that custodial sentences "shock[ed] the judicial conscience," State v. Gardner, 215 N.J. Super. 84, 93 (1987), wherefore it remanded for resentencing. That court, whose decision preceded by two months our opinion in State v. Hartye, 105 N.J. 411 (1987), ruled that once a trial court concludes that the presumption of non-imprisonment has been overcome, a defendant should be given a split sentence rather than a straight prison term in a state correctional facility. 215 N.J. Super. at 93. That ruling runs counter to our holding in Hartye, in which we held that once the presumption of non-imprisonment has been overcome, a defendant must be sentenced in accordance with the statutory guidelines in N.J.S.A. 2C:44-1 and 2C:43-6.
One member of the panel below, concurring in part and dissenting in part, disagreed that the presumption against imprisonment had been overcome. Because he was of the view that the imposition of a custodial term, even as a condition of probation, would violate the legislative presumption against imprisonment, 215 N.J. Super. at 95, he concluded that the proper sentence here would be non-custodial probation. Id. at 98. That too is inconsistent with Hartye. In unreported opinions the Appellate Division reached identical results on the appeals of defendants Schwartz and Van Nostrand.
All three defendants appealed as of right to this Court on the basis of the partial dissent below, R. 2:2-1(a)(2). They attack
the finding that the statutory presumption against incarceration had been overcome. In addition, we granted the State's petition for certification, State v. Gardner, 108 N.J. 213 (1987), primarily to resolve the aforementioned conflict between the Appellate Division opinion in this case and our decision in State v. Hartye, supra, 105 N.J. 411.
Our disposition of the appeals results in a remand for resentencing in all three cases.
Defendants, Daniel Gardner, John Van Nostrand, and Arthur Schwarz, were members of the Elizabeth Avenue volunteer fire company in South Bound Brook. On October 13, 1984, defendants were drinking alcoholic beverages and driving through Bound Brook in a jeep owned by Van Nostrand. Their peregrinations took them past an unoccupied house in Franklin Township, which they collectively decided to set afire. In pursuit of that purpose they proceeded to their firehouse, located some gasoline and a highway flare, and returned to the abandoned house. Van Nostrand remained in the jeep and Gardner stood in the driveway while Schwarz doused the inside of the house with gasoline and set it on fire with the flare. The trio waited outside the house for several minutes before returning to the firehouse.
When the Franklin Township police and fire departments arrived at the scene in response to a neighbor's report of a fire, the house was engulfed in flames. The neighbor who had reported the fire disclosed that a maroon jeep with a canvas top had driven slowly past the house several times. He also told police that he had seen the jeep stop in front of the house just before he first noticed the fire. Shortly thereafter, a patrolman noticed a jeep that matched the eyewitness's description, parked behind the Elizabeth Avenue firehouse. The eyewitness identified the jeep as the one that he had seen earlier. A motor
vehicle check revealed that the jeep belonged to defendant Van Nostrand.
The police investigation into the cause of the fire disclosed that gas and electric service to the house had been disconnected, thereby ruling out any possibility that a utility malfunction was the cause. Based in part on eyewitnesses' accounts, investigators concluded that an accelerant had been used to start the fire. Police then communicated with Van Nostrand, informed him of his rights, and questioned ...