State v. Stephenson, A--339

• Decision Date: 24 August 1956
• Docket Number: No. A--339,A--339
• Citation: 41 N.J.Super. 315,125 A.2d 157
• Parties: The STATE of New Jersey, Plaintiff-Respondent, v. Thomas STEPHENSON, Defendant-Appellant. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 315

41 N.J.Super. 315

125 A.2d 157

The STATE of New Jersey, Plaintiff-Respondent, v. Thomas STEPHENSON, Defendant-Appellant.

No. A--339.

Superior Court of New Jersey.

Appellate Division.

Argued July 30, 1956.

Decided Aug. 24, 1956.

Harold J. Brown, Bloomfield, for appellant (Joyce & Brown, Bloomfield, attorneys; Rosemary Higgins Cass, Bloomfield, on the brief).

Robert Dilts, Ridgewood, for respondent (Guy W. Calissi, Bergen County Pros., Hackensack, attorney; William C. Brudnick, River Edge, on the brief).

Before Judges McGEEHAN, SCHETTINO and HAND.

The opinion of the court was delivered by

McGEEHAN, J.S.C. (temporarily assigned).

In September 1955 the defendant-appellant moved before the Bergen County Court, Law Division, for the correction of two alleged illegal sentences imposed on June 29, 1942, and the present appeal is from the order entered on this motion.

On June 29, 1942 the defendant, represented by counsel, waived indictment and trial by jury at a hearing in the Second District Criminal Court of Bergen County. He was arraigned before the Bergen County Special Sessions Court on July 8, 1942, and pleaded Non vult to the charges alleged against him in five numbered accusations, reading as follows:

No. 14949--'did wilfully, feloniously and forcibly take from the person of one Frank Perry, certain goods and chattels, to wit: Currency, of the value of Thirty-six Dollars, lawful money of the United States of America, the goods and chattels of the Frank Perry Time Market, by putting him, the said Frank Perry, in fear, in violation of Title 2, Chapter 166, Section 1 of the Revised Statutes of 1937, against the peace of the State, the Government and dignity of the same.'

'The Prosecutor of the Pleas of said County of Bergen further alleges that the said Thomas Stephenson, alias James Chester, and Frank E. Osback, Jr., on the eighth day of June, in the year of our Lord One thousand nine hundred and forty-two, at the Borough of Rutherford, in the said County of Bergen and within the jurisdiction of this court, did, being then and there armed with revolvers, wilfully, feloniously and forcibly take from the person of one Frank Perry, certain goods and chattels, to wit: Currency, of the value of Thirty-six Dollars, lawful money of the United States of America, the goods and chattels of the Frank Perry Time Market, by putting him, the said Frank Perry, in fear * * *.'

No. 14950--'did wilfully, feloniously and forcibly take from the person of one Charles Gordon, certain personal goods and chattels, to wit: Currency of the value of $135.00, lawful money of the United States of America, the goods and chattels of the said Charles Gordon, by putting him, the said Charles Gordon, in fear, in violation of title 2, chapter 166, section 1 of the Revised Statutes of 1937, against the peace of the State, the Government and dignity of the same.'

'The Prosecutor of the Pleas of said County of Bergen further alleges that the said Thomas Stephenson, alias James Chester, and Frank E. Osback, Jr., on the tenth day of June, 1942, at the Township of Lyndhurst, in the said County of Bergen, and within the jurisdiction of this court, did, being then and there armed with revolvers, wilfully, feloniously and forcibly take from the person of one Charles Gordon, certain personal goods and chattels, to wit: Currency, of the value of $135.00, lawful money of the United States of America, the goods and chattels of the said Charles Gordon, by putting him, the said Charles Gordon, in fear * * *.'

No. 14951--'on the 21st day of June, in the year of our Lord, one thousand nine hundred and forty-two, at the Borough of Rutherford, in the said County of Bergen and within the jurisdiction of this court, certain goods and chattels, to wit, one set to Auto License Plates Reg. No. R.C. 55 P., the property of Harry Blackledge, of the value of approximately Ten Dollars, lawful money of the United States of America, then and there being found, unlawfully did steal, take and carry away * * *.'

No. 14952--'on the twenty-first day of June, in the year of our Lord, one thousand nine hundred and forty-two at the Township of Lyndhurst in the said County of Bergen and within the jurisdiction of this court, certain goods and chattels, to wit, one Ford Sedan, 1935 Model, Registered No. R.F. 56--W, N.J., of the value of Three Hundred Dollars, lawful money of the United States of America, of the goods and chattels of Madeline Carboy, then and there being found, unlawfully did steal, take and carry away * * *.'

No. 14953--'on the twenty-first day of June, in the year of our Lord, one thousand nine hundred and forty-two at the Township of Lyndhurst in the said County of Bergen and within the jurisdiction of this court, did carry concealed in or about his clothes or person, a .22 caliber trappers model target pistol * * *.'

The defendant appeared on July 15, 1942 before the Court of Special Sessions of Bergen County for sentencing, and the transcript of this proceeding reads as follows:

'The Court: Stephenson, the sentence in your case will be, on the two armed robbery allegations, that you be committed to the State's Prison, at hard labor, for a period of not less than ten years nor more than fifteen years. The sentence is to run consecutively.

'The sentence in your case on the carrying concealed weapons allegation will be that you be committed to the State's Prison, at hard labor, for a period of not less than two years nor more than three years.

'The sentence in your case upon the larceny of auto and larceny allegations will be that you be committed to the State's Prison, at hard labor, for a period of not less than two years nor more than three years.

'Were there separate allegations for robbery?

'Mr. Breslin: Allegations, yes, sir, all separate.

'The Court: There are two robbery and two armed robbery.

'Mr. Breslin: That is right, two counts of robbery.

'The Court: He pleaded guilty to robbery.

'Mr. Breslin: That is right.

'The Court: Sentence in the matter of the two allegations charging you with robbery will be that you be committed to State's Prison, at hard labor, for a period of not less than five years nor more than seven years on the two robbery allegations. All sentences are to run concurrently with the sentences imposed in the two armed robbery allegations.'

These sentences were entered as follows: (a) armed robbery (No. 14949)--10 to 15 years, (b) armed robbery (No. 14950)--10 to 15 years, (c) robbery (No. 14949)--5 to 7 years, (d) robbery (No. 14950)--5 to 7 years, (e) larceny (No. 14951)--2 to 3 years, (f) larceny (No. 14952)--2 to 3 years, (g) carrying concealed weapons (No. 14953)--2 to 3 years; the two armed robbery sentences (a) and (b) to run consecutively, while sentences (c), (d), (e), (f) and (g) to be served concurrently with sentences (a) and (b).

At the time, two statutes applied to sentencing in cases of robbery while armed. R.S. 2:166--1 provided punishment 'by a fine not exceeding one thousand dollars, or imprisonment at hard labor not exceeding fifteen years, or both.' R.S. 2:176--5, in pertinent part, provided that 'Any person who shall commit or attempt to commit any * * * robbery * * * when armed with * * * any revolver * * * shall, In addition to the punishment provided for the crime, be punished on a first conviction by imprisonment for not more than five years * * *. No such Additional punishment shall be imposed unless the indictment shall have averred that the person was armed with or had in his possession any such instrument and conviction was had thereon.' (Italics ours.)

The State concedes that the defendant was not accused, indicted, tried or convicted as a multiple offender and that the defendant at the time of the original sentence came under the provision for punishment on a first conviction under R.S. 2:176--5.

When sentencing a defendant on a count charging a violation of R.S. 2:166--1 and R.S. 2:176--5, the trial court should state the minimum and maximum terms imposed under R.S. 2:166--1 and also state the minimum and maximum terms imposed in his discretion under R.S. 2:176--5. It is improper to lump together the sentences on a count alleging a violation of R.S. 2:166--1 and R.S. 2:176--5. State v. Cianci, 18 N.J. 191, 113 A.2d 176 (...