For affirmance -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For reversal -- None. Wilentz, C.J., Concurring.
The judgment is affirmed, substantially for the reasons expressed in the opinion of the Appellate Division, reported at 262 N.J. Super. 7, 619 A.2d 1016 (1993).
WILENTZ, C.J., Concurring.
I concur in the Court's affirmance of the judgment below. I write to underline an inconsistency between the sentencing option available for "youthful" first- and second-degree offenders -- sentencing under the young adult offenders statute, N.J.S.A. 2C:43-5, which can result in an indeterminate term served at the Youth Correctional Institution Complex ("Youth Complex") -- and the sentencing mandated for other adults (twenty-six and older) for the same crimes, sentencing that will result, practically without exception, in prison terms in the range of five to ten years for second-degree offenders and ten to twenty years for first-degree offenders. Given the infrequency of youthful offender sentences,*fn1 this sentencing disparity presumably has little effect on deterrent goals. Its potential for diluting deterrence exists, however, and the Legislature should be made aware of it.
The young adult offenders statute makes available, without exception, to all offenders between the ages of eighteen and twenty-five, at the court's option, an indeterminate sentence for their offense, presumably including first- and second-degree offenses. N.J.S.A. 2C:43-5. Were the offender twenty-six years of age or older, that same first-degree offense, under our decisions, almost mandatorily results in a prison term of between ten to
twenty years. Given a presumptive sentence of fifteen years in prison and assuming no parole ineligibility, serving at least three years of real time is almost a certainty.
The decision to sentence a young adult offender to the Youth Complex is subject to the discretion of the sentencing court. State v. Nunez, 209 N.J. Super. 127, 134, 506 A.2d 1295 (App.Div.1986) (construing N.J.S.A. 2C:43-5). The courts of this State have not yet fleshed out the factors that should guide that discretion, but under N.J.S.A. 2C:43-5's predecessors,*fn2 that decision usually involved balancing the potential for rehabilitation against the need for the secure confinement of the defendant and general deterrence. State v. McBride, 66 N.J. 577, 580, 334 A.2d 27 (1975) (suggesting that goal of rehabilitation should guide sentencing of youthful offenders); State v. Provet, 133 N.J. Super. 432, 439, 337 A.2d 374 (App.Div.1975) (affirming decision to sentence twenty-three-year-old defendant convicted of rape and armed robbery to fixed term at state prison rather than indeterminate term at Youth Complex because Judge considered defendant "dangerous and capable of repeating this type of offense unless incarcerated"); see also Model Penal Code § 6.05 (1962) (providing for indeterminate term sentencing for offenders between ages of sixteen and twenty-one "if the [c]ourt is of the opinion that such special term
is adequate for his correction and rehabilitation and will not jeopardize the protection of the public").*fn3
Comparing the sentencing scheme prescribed by statute and by regulation, whether a defendant is sentenced to state prison or to the Youth Complex is significant with respect to eligibility for parole. If a defendant is sentenced to prison other than for a life term, and the court does not impose a parole bar, the defendant will be presumptively eligible for parole after serving one-third of the sentence.*fn4 N.J.S.A. 30:4-123.51; N.J.A.C. 10A:71-3.2(c)2. However, pursuant to Parole Board regulation, N.J.A.C. 10A:71-3.3(a), young adult offenders sentenced to indeterminate terms in the Youth Complex will generally return to the streets much earlier than defendants sentenced to state prison.*fn5
For example, under the Code of Criminal Justice, a twenty-six-year-old defendant convicted of second-degree robbery will presumptively be sentenced to ...