State v. Kunz

• Decision Date: 16 December 1969
• Parties: , 40 A.L.R.3d 659 STATE of New Jersey, Plaintiff-Respondent, v. Henry KUNZ, Defendant-Appellant.
• Court: New Jersey Supreme Court

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55 N.J. 128 259 A.2d 895, 40 A.L.R.3d 659 STATE of New Jersey, Plaintiff-Respondent,
v.
Henry KUNZ, Defendant-Appellant. Supreme Court of New Jersey. Argued Sept. 24, 1969.
Decided Dec. 16, 1969.

David W. Hanis, Passaic, for appellant.

Harold N. Springstead, Asst. Prosecutor, for respondent (Guy W. Calissi, Bergen County Prosecutor, attorney).

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The opinion of the court was delivered by

JACOBS, J.

The defendant was convicted of having purchased a stolen automobile in violation of N.J.S.A. 2A:139--1. Cf. State v. Bott, 53 N.J. 391, 251 A.2d 115 (1969). At the time of sentencing, defense counsel asked that he be given an opportunity to review the presentence report which the trial judge had theretofore examined. The request was denied and the defendant was sentenced to serve a term of 'not less than one year nor more than two years in New Jersey State Prison.' The Appellate Division rejected the defendant's appeal in an unreported Per curiam which stated that '(t)here was no right on the part of the defendant or counsel to see the presentence report for aid in argument on mitigation of sentence.' We granted certification. 53 N.J. 273, 250 A.2d 137 (1969).

The parties have filed an agreed statement in lieu of trial transcript. It sets forth that the State's case consisted of testimony that a Coupe de Ville Cadillac owned by Mr. Degenshein of New York had been stolen; that the title papers covering it had been transferred to the defendant from a Vermont registration; that the Certificate of Ownership issued by the State of New Jersey certified that the person named therein was the owner of the vehicle; that there was nothing irregular on the face of the registration and title certificate; that the serial number of the automobile had been altered; and that when the defendant was questioned by a State Trooper he said that he had paid $4,600 in cash for the automobile to a man who identified himself as Harvey Bruner of Vermont and who represented that he was in the business of repossessing automobiles for finance companies and banks and reselling them.

The defendant testified that he purchased the automobile for $4,600 in cash which he had borrowed from his mother and sister; that he considered that that was a fair and [259 A.2d 896] reasonable price for the automobile which had some recorded mileage and minor defects such as a ripped seat, an inoperative air conditioner, etc.; that he is a homeowner, a family

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man and the father of two small children; that he has been in business with his partner Mr. Grimm at the same location for more than ten years and that 'he had absolutely no criminal record of any kind and had never been in any kind of trouble at any time during his life.' Mr. Grimm testified in support with respect to their business relationship and 'that the defendant had an excellent reputation in the business community and had never been in any trouble of any kind to his knowledge.' The defendant's sister also testified, saying that the defendant 'had an excellent reputation in his residential community, that he was a family man with two small children, owned his own home and had never been in any kind of trouble in his lifetime.'

The agreed statement further sets forth that although the reports of investigators and portions of the prosecutor's file contained 'suspicious or speculations' that the defendant knew more about the stolen automobile than he was willing to say, no supporting proof or evidence of any kind was ever brought out during the trial proceedings against the defendant. The jury found the defendant guilty and in the light of that finding it must be assumed that when the defendant purchased the automobile he knew it was stolen. But the finding as such did not implicate the defendant beyond being a knowing purchaser of a stolen automobile and when his counsel appeared at sentencing time, to plead for probation or other minimal sentence, he appropriately stressed his understanding that the defendant was an established business man of good reputation with no prior or other involvement with the law. The trial judge, without any comment as to the contents of the presentence report or as to any suggested additional involvement on the defendant's part, imposed the State Prison term.

In compliance with R.R. 3:7--10(b) (see R. 3:21--2) the trial judge noted his reason for imposition of the State Prison sentence as follows: 'Although this is the defendant's first arrest, incarceration is deemed necessary.' After the Appellate Division had sustained the sentence, the defendant's

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counsel moved before the trial judge for its reduction, stressing that 'this defendant has had throughout his entire life an exemplary and clear record, never been arrested, never had any involvement with the authorities of any kind whatever.' Still without disclosure of the contents of the presentence report, the trial judge stated that he had restudied the report and did not feel that there should be 'any change in the sentence.'

In his petition for certification, defense counsel reiterated his understanding as to the defendant's good background and reputation and his view as to the unjust nature of the sentence. Before oral argument we examined the presentence report and noted particularly that it charged that a stolen vehicle ring, specializing in Cadillacs, was being operated by a named individual whose 'contact in New Jersey' was the defendant and that the defendant had been involved with several identified purchases of stolen automobiles in New Jersey. When at oral argument this was called to the attention of defense counsel, he branded the charge as wholly unfounded and reasserted his position that the defendant's only transgression and its full extent was the single offense which was the subject of the trial.

The appeal to the Appellate Division as well as the petition for certification to this Court were addressed solely to the sentence and both attacked the trial court's action in refusing to disclose the contents of the presentence report and in relying on crucial extra-trial charges therein which the defendant alleges were groundless. He contends that his sentencing in such manner violated his rights under the due process clause of the fourteenth amendment. See Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948); But cf. Williams[259 A.2d 897] v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949); See also Baker v. United States, 388 F.2d 931 (4 Cir. 1968); Verdugo v. United States, 402 F.2d 599, 613 (9 Cir. 1948) (concurring opinion). He further contends that, wholly apart from any constitutional compulsion, he should, as a

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matter of rudimentary fairness, have been permitted to examine the presentence report and have been afforded an opportunity to meet the extra-trial charges therein which were presumably responsible for the severity of his sentence. See American Bar Association Project On Minimum Standards for Criminal Justice, Sentencing Alternatives and Procedures 200--228 (Approved Draft 1968); President's Commission On Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 144--45 (1967); President's Commission On Law Enforcement and Administration of Justice, Task Force Report: The Courts 20 (1967); Lehrich, 'The Use and Disclosure of Presentence Reports in The United States,' 47 F.R.D. 225 (1969); Higgins, 'Confidentiality of Presentence Reports,' 28 Albany L.Rev. 12 (1964); Wyzanski, 'A Trial Judge's Freedom and Responsibility,' 65 Harv.L.Rev. 1281, 1291--92 (1952); Notes, 81 Harv.L.Rev. 821, 835--43 (1968); 58 Colum.L.Rev. 702 (1958).

Presentence reports were originally designed to benefit the individual offenders and lessen the severity of the penal laws. They were incident to the penological approach which sought, and still seeks, to tailor the sentence to the background and present circumstances of the offender along with the nature of his offense. Their worth, so long as they are accurate, is beyond question; if inaccurate their harm may be incalculable. Those who have expressed support for an open policy of disclosure of presentence reports to defendants have urged that, even apart from the overriding considerations of fairness and justness, it will serve to improve and strengthen probation reports by promoting greater accuracy on the part of the officials as well as the persons who supply information to them. Those who have expressed opposition to such a policy have urged primarily that it will dry up necessary sources of information. They say that without a promise of confidentiality, the defendant's employer, his family, friends and others, will generally remain silent as to his habits, associations, and other personal data. However,

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they furnish little in the way of solid support for their apprehensions which apparently have not materialized in jurisdictions already operating under local policies of disclosure. See Winter, J., concurring in Baker v. United States, Supra, 388 F.2d at 935:

Legal literature is replete with a debate over the pros and cons of disclosure and non-disclosure, but we need look no further than the District of Maryland in determining how district judges should be guided. In the District of Maryland, disclosure of presentence reports, in accordance with my views, has been the practice for over ten years. The experience of Maryland belies the fears that, as general propositions, sources of confidential information dry up, probation officers are deprived of trustworthy and logical informants, and the object of the report is defeated, if the contents of reports are disclosed.

See also Thomsen, 'Confidentiality of the Presentence Report: A Middle Position,' 28 Fed.Prob. 8 (1964); Higgins, 'In Response to Roche,' 29 Albany L.Rev. 225, 229 (1965); Cf. Roche, 'The Position for Confidentiality of the Presentence Investigation Report,' 29 Albany L.Rev...