On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Michels and Baime. The opinion of the court was delivered by Michels, P.J.A.D.
Tried to a jury, defendant Sean Styker was convicted of armed robbery, a crime of the first degree, in violation of N.J.S.A. 2C:15-1 (First Count), and simple assault, a disorderly persons offense, in violation of N.J.S.A. 2C:12-1a, a lesser-included offense of the crime charged in the Second Count of his Indictment. The trial court committed defendant to the custody of the Commissioner of the Department of Corrections for fifteen years and assessed a $30 Violent Crimes Compensation Board (VCCB) penalty for the armed robbery conviction under the First Count. Additionally, defendant was sentenced to a concurrent six-month jail term and assessed a $30 VCCB penalty for the simple assault conviction under the Second Count. Defendant appeals.
Defendant seeks a reversal of his convictions or, alternatively, a modification of his sentence, based on the following grounds set forth in his brief:
I. WHERE THE COURT IMPROPERLY CHARGES THE JURY A DEFENDANT IS ENTITLED TO A NEW TRIAL.
II. UNDER THE CIRCUMSTANCES IN THIS CASE THE COURT SHOULD HAVE HELD A WADE HEARING.
III. THE DEFENDANT'S RIGHT TO A SPEEDY TRIAL WAS DENIED IN THIS MATTER.
IV. THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHERE COUNSEL FAILED TO VIGOROUSLY REPRESENT THE CLIENT.
V. WHERE THE EVIDENCE AGAINST THE DEFENDANT DOES NOT PROVE HIS GUILT BEYOND A REASONABLE DOUBT, THE DEFENDANT MUST BE ACQUITTED.
VI. WHERE THE DEFENDANT IS UNDER AGE 26 AT THE TIME OF SENTENCING HE IS ENTITLED TO BE SENTENCED UNDER THE YOUTH OFFENDER ACT UNLESS THE COURT PLACES FINDINGS ON THE RECORD THAT HE SHOULD BE SENTENCED AS AN ADULT OFFENDER.
We have carefully considered these contentions, and all of the arguments advanced by defendant in support of them, and find that, with the sole exception of defendant's challenge to the legality and propriety of his sentence for first degree armed
robbery, they are clearly without merit and require no further Discussion. R. 2:11-3(e)(2).
As noted previously, defendant was convicted of first degree armed robbery in violation of N.J.S.A. 2C:15-1. There is a presumption of imprisonment for convictions of first and second degree crimes. N.J.S.A. 2C:44-1d. The permissible sentence of imprisonment for a first degree crime is between ten and twenty years. N.J.S.A. 2C:43-6a(1). Moreover, the presumptive term for such a crime is fifteen years. N.J.S.A. 2C:44-1f(1)(b). Here, the trial court imposed the presumptive term of fifteen years after carefully weighing the aggravating and mitigating factors and determining that they were in equipoise.
Defendant challenges the legality and propriety of his sentence of imprisonment for armed robbery, claiming that, because he was under twenty-six years of age at the time of sentencing, he was entitled to be treated as a youthful offender in accordance with N.J.S.A. 2C:43-5, and sentenced thereunder to an indeterminate term at the Youth Correctional Institution Complex (Youth Complex).
N.J.S.A. 2C:43-5 provides:
Any person who, at the time of sentencing, is less than 26 years of age and who has been convicted of a crime may be sentenced to an indeterminate term at the Youth Correctional Institution Complex, in accordance with R.S. 30:4-146 et seq., in the case of men, and to the Correctional Institution for Women, in accordance with R.S. 30:4-153 et seq., in the case of women, instead of the sentences otherwise authorized by the code. This section shall not apply to any person less than 26 years of age at the time of sentencing who qualifies for a mandatory minimum term of imprisonment without eligibility for parole, pursuant to subsection c. of N.J.S. 2C:43-6; however, notwithstanding the provisions of subsection c. of N.J.S. 2C:43-6, the mandatory minimum term may be served at the Youth Correctional Institution Complex or the Correctional Institution for Women. [Emphasis added].
While the language of this statute is plainly discretionary, defendant relies on State v. McBride, 66 N.J. 577, 334 A.2d 27 (1975), which construed the predecessor of N.J.S.A. 2C:43-5 to mean that "[a] youthful offender eligible for sentence to the
[Youth] Complex should ordinarily be sentenced there unless good and substantial reasons exist for not so doing." 66 N.J. at 580, 334 A.2d 27. However, State v. McBride was decided prior to the broad revision of our criminal law which was accomplished by the enactment of the New Jersey Code of Criminal Justice (Code). See N.J.S.A. 2C:1-1, et seq. (L. 1978, c. 95, § 2C:1-1, et seq., effective Sept. 1, 1979; Amended by L. 1979, c. 178, § 1, et seq., effective Sept. 1, 1979). Thus, a question arises as to the current precedential value of the principle set forth in State v. McBride.
Despite the clear significance of this issue to both criminal defendants and sentencing courts, it does not appear to have ever been addressed directly. However, the existent conflict is evident. The Code "established an entirely new sentencing process. It displaced standards established under prior decisional law, created presumptive terms of imprisonment, and limited the discretionary power of sentencing courts." State v. Roth, 95 N.J. 334, 340, 471 A.2d 370 (1984). See also State v. Jarbath, 114 N.J. 394, 400, 555 A.2d 559 (1989). In sum, it favors uniform, structured, limited discretion sentencing. See State v. Baylass, 114 N.J. 169, 172, 553 A.2d 326 (1989); State v. Hartye, 105 N.J. 411, 417, 522 A.2d 418 (1987); State v. O'Connor, 105 N.J. 399, 405, 522 A.2d 423 (1987); State v. Yarbough, 100 N.J. 627, 635, 498 A.2d 1239 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986); State v. Roth, supra, 95 N.J. at 345, 471 A.2d 370. State v. McBride, on the other hand, when dealing with youthful offenders under pre-Code law, placed a premium on, and mandated a preference for, ...