*1 PLAINTIFF-RESPONDENT, JERSEY, NEW STATE OF KUNZ, DEFENDANT-APPELLANT. HENRY Argued September 1969. 1969 Decided December cause for David W. Hanis argued appellant. Mr. Procesutor, N. argued Harold Assistant Springslead, Mr. Calissi, W. Guy Bergen County for respondent the cause {Mr. Prosecutor, attorney).
The opinion of the court was delivered by *2 J. The defendant was convicted of having pur Jacobs, a chased stolen automobile in violation N. of J. A. 2A: Bott, 139-1. State v. 53 N. J. 391 At the time (1969). Cf. defense sentencing, counsel asked that he be an given opportunity to review the presentence report which the trial had theretofore examined. The request denied and the defendant was sentenced a to serve term of “not less than one nor more year than two in New years State Jersey Prison.” The Division Appellate rejected the defendant’s in an appeal curiam unreported per which stated that was no on right of the defendant or “[t]here counsel to see the for aid in on argument mitigation sentence.” We J. granted certification. N. 273 (1969).
The have filed an parties agreed statement in lieu of It sets forth transcript. that the State’s case consisted that a testimony de Coupe Ville Cadillac owned Mr. Degenshein New York stolen; had been that the title papers it had covering been transferred to the defendant from a Vermont registration; Certificate of Owner- issued ship by the State of New Jersey certified that person named therein was the vehicle; owner of the there was on nothing irregular the face of the registration certificate; and title the serial number of the auto- mobile had been altered; and that when the defendant was a questioned by State he said that he Trooper had paid $4,600 in cash for the automobile ato man who identified himself as Harvey Bruner of Vermont and who represented that he was in the business of repossessing automobiles for finance companies banks and them. reselling
The defendant testified that he purchased automobile $4,600 in cash which he had borrowed from his mother sister; that he considered that that was a fair and reasonable for the price automobile which had some recorded and minor mileage defects such seat, an ripped inopera- conditioner, air etc.; tive that he is homeowner, family children; that he has been father of two small
man and the at the same location Mr. Grimm with his partner in business no absolutely “he had and that years ten for more than kind never been in any kind and had any criminal record of Mr. his life.” Grimm testified time any during of trouble at business relationship to their respect support reputation had excellent “that the defendant been in trouble of any and had never community business also The defendant’s sister kind to his knowledge.” “had an excellent testified, reputa- that the defendant saying man family that he was community, in his residential tion children, his own home and had never small owned with two kind of trouble his lifetime.” been in any forth that although statement further sets agreed file investigators portions prosecutor’s reports *3 or the defendant speculations” contained “suspicions automobile he was knew more about the stolen than willing or evidence of kind was ever any no say, supporting proof out the trial the defen- during proceedings against brought in found the defendant jury guilty light dant. The it must be assumed that when the defendant of that finding knew the automobile he it was stolen. But purchased did not implicate beyond as such defendant finding of a stolen automobile and when knowing purchaser being time, his counsel at for appeared sentencing plead probation sentence, minimal he or other stressed his appropriately that the defendant was an established business understanding with prior man of no or other involvement good reputation with the law. The trial comment judge, any without as to of the presentence report the contents as to any suggested involvement on the additional defendant’s part, imposed State Prison term. B. B. 3 :7—10 B. 3 compliance (b) (see :21-2) his reason for imposition
trial noted judge State Prison sentence as follows: this is the “Although defendant’s first arrest, incarceration is deemed necessary.” After the Appel- sentence, late Division had sustained the the defendant’s counsel moved reduction, before the for its stressing that “this had defendant has his entire throughout life and clear exemplary record, arrested, never been never had any involvement with the authorities of kind whatever.” Still without disclosure of the contents óf the presentence the trial stated report, that he had restudied the report and did not feel that there should be “any change sentence.”
In his petition certification, defense counsel reiterated his as to understanding the defendant’s good background and his view as reputation unjust to the nature of the sentence. Before oral we examined argument the presentence and noted particularly that that a charged stolen vehicle ring, Cadillacs, specializing being operated a named individual whose “contact New Jersey” was the the defendant had been involved with several identified purchases of stolen automobiles in New When Jersey. at oral this argument was called to the atten- tion of defense counsel, he branded the charge wholly unfounded and reasserted his position that the defendant’s full only its transgression extent was the offense single which was the subject of the trial. to the appeal Division Appellate as well as the for certification
petition
to this Court were addressed solely
to the
sentence
both attacked the trial court’s action in
to disclose the
refusing
contents of the presentence report
and in
on crucial
relying
extra-trial charges therein which
the defendant
were
He
alleges
groundless.
contends that
such manner
violated his
under the
rights
*4
due
clause of the
process
fourteenth amendment. See Town
Burke,
send
736,
334
v.
U. S.
matter of an been afforded and have examine the presentence report which therein charges to meet the extra-trial opportunity for of his sentence. severity responsible were presumably On Minimum Project American Bar Association See Justice, Alternatives and Criminal Sentencing Standards for 1968); Draft President’s Procedures 200-28 (Approved Administration and Commission On Law of Enforcement Justice, 14A-45 Society Crime in Free Challenge and President’s Commission On Law (1967); Enforcement Justice, The Courts Task Force Report: Administration of Disclosure of Presentence Lehrich, "The Use and (1967); F. R. D. 225 States,” (1969); The United Reports 28 Albany Presentence "Confidentiality Reports,” Higgins, "A Trial Freedom Wyzanski, L. Rev. Judge’s (1964); L. Rev. 1291-92 (1952); and 65 Harv. Responsibility,” L. 58 Colum. Notes, 81 Harv. L. Rev. 835-43 (1968); Rev. 702 (1958). to benefit designed were reports
Presentence originally severity offenders and lessen penal individual incident to the They penological approach laws. were seeks, tailor the sentence to back- and still sought, offender along circumstances ground present worth, are Their so long they nature of his offense. if accurate, inaccurate their harm beyond question; who have expressed support be incalculable. Those defendants of disclosure of presentenee reports open policy that, even from considera- apart have urged overriding will serve to justness, improve tions of fairness reports promoting greater accuracy probation strengthen as well as who persons on the officials supply Those have expressed information to them. who opposition have it will primarily such urged dry up policy They say sources of information. that without a necessary the defendant’s confidentiality, employer, his promise others, will remain generally friends silent as family, habits, associations, other data. personal to his How-
133 ever, furnish little in the solid they way of for their support have not apprehensions apparently materialized in under jurisdictions already local operating policies dis- Winter, J., closure. See in Baker v. concurring United States, 388 F. 2d supra, at 935: Legal replete pros literature is debate over the and cons non-disclosure, of disclosure and but we need look no further than determining Maryland judges in how the District of district should be guided. Maryland, reports, In the District of disclosure of my views, practice years.
in accordance with has been the for over ten experience Maryland that, general propo- belies fears The sitions, dry up, probation sources of confidential information officers deprived trustworthy logical informants, object are reports defeated, of the if the contents of are disclosed. Thomsen, See also “Confidentiality Presentence Report: Position,” A Middle 28 Fed. Prob. 8 “In (1964); Higgins, Roche,” 29 L. Response Albany 225, Rev. 229 (1965); Roche, “The Position for of the Pre- Confidentiality cf. 29 206, sentence L. Rev. Investigation Report,” Albany 222- 24 (1965).
The local of disclosure practice referred to in Judge Winter’s finds opinion few counterparts quite of our sister states as well as in jurisdictions such foreign as Canada and Great Britain. 1967, See Criminal Justice Act of c. 80, 57; sec. 1948, Criminal Justice 6, Act & 12 Geo. Jackson, 43; 58, c. sec. The Justice in Machinery England ed. Note, 248-50 1967); of Criminal (5th “Right Offender Challenge Report Sentence,” Used Determining Colum. L. Rev. 567-72 The (1949). California Penal Code (§ 1203) (Deering’s Supp.) specifically provides be made presentence report must available and defense well prosecuting attorneys as as the court. See also Ala. Code tit. Minn. Ann. Stat. (1959); 609. § § Code 115(4) (1965). Virginia (§ 53-278.1) (1967) that in certain specifically provides cases the probation officer shall present open court the presence of the defendant who may cross-examine and may materials present Ann., on his own behalf. Ariz. Rev. Stat. R. P. Grim. Cf. *6 19-2515, 19-2516 Idaho Ann. (Supp. 336 Code (1956); §§ - 17, 18, 19 (1965); Cent. Code 29-26 N. D. 1965); §§ Rev. 22, Ann. 973 Ore. Stat. (1961); Stat. tit. § Okla. § - Court, 139 District Kuhl v. 1965); .110 (Supp. 137.080 State, 275 P. v. 536, Spencer 366 2d 347 (1961); Mont. In some states Ct. 1954). P. 2d 329 Crim. App. (Okla. were entirely court rules codes and the where legislative the need for disclosure subject, recognized on the silent Harmon, 125, Conn. 147 court decisions. State v. See by State, Md. 594, 2d 596 Driver v. 201 A. (1960); 157 cf. 326, 257 N. 570, A. v. C. 25, Pope, 92 2d 573 State (1952); 2d 126 126 E. (1962). courts, many as well as federal practice or disclosure leave the choice of has been to states, Fed. the trial judge. See to the discretion
nondisclosure
8A
Committee);
of Advisory
Crim.
32
(Notes
R.
P.
(c) (2)
Moore,
Practice,
(1969).
32.01 [3],
Federal
J.
32.03[4]
302
v.
355 F. 2d
Maroney,
ex rel. Gerchman
United States
uneasi
to
“increasing
Cir.
the court
1966),
pointed
(3
failure to
adopt
practice
the federal rule’s
ness” regarding
the' defendant might
a
so that
right
of disclosure as matter
in the
fair
“to show factual errors
report.”
have
opportunity
Fischer,
v.
381
F. 2d
n.
And in
States
355
at 310
10.
United
federal
2d 509
Cir.
the court noted that
1967),
F.
(2
rule
not be exercised
discretionary
“conservatively
should
“the administra
but,
a
fashion”
on the contrary,
in niggardly
be
liberal
justice
improved by
generous
tion of
would
v.
defendant, any never into or should take account brought other fact which is not to the attention of coun- defendant’s opportunity partem, sel with to rebut it. Audi if alteram it is not a principle justice, sufficiently universal of democratic is at rate departed well founded not from he is when performing important his most function. widely The academic world has been critical of the federal rule’s disclosure. In Tentative mandatory omission American Penal Draft No. 2 of the Law Institute’s Model sentence, Code before court proposed imposing advise or “the defendant his counsel of factual contents and the conclusions of any pre-sentence investigation examination and fair if afford psychiatric opportunity, defendant so them.” was a controvert There requests, sources of that “the confidential need proviso information *7 not, however, he disclosed.” The ac- 7.07(5). comment § the noted ffiess than companying proposal that disclosure this with hardly comports elementary fairness” (at 55). In 1962, the Official Draft Penal Proposed of the Model Code proposal 1967, reaffirmed the without alteration. In President’s Commission on Law Enforcement and Ad- ministration of Justice recommended that the absence “[i]n of reasons for compelling nondisclosure of informa- special tion, the defendant and his counsel should to be permitted examine the entire presentence President’s Com- report.” Justice, mission On Law and Administration Enforcement of 145; Grime Challenge The in a Free at Society, supra of see President’s Commission On Law and Ad- Enforcement Justice, Courts, ministration Task Report: Force The of 20; Guzman, supra at to “Defendant’s Access Presentence Courts,” in Federal Criminal Reports 52 Iowa L. Rev. Rubin,
181-85 The Law Criminal at (1966); Correction of Crime, (1963); 87-101 Tappan, Justice and Correction at 553-59 (I960). Bar Com- 1967, the American Association’s Advisory Review, headed Federal Circuit Sentencing
mittee on which Sobeloff, submitted Judge comprehensive with dealt in whether there question significant of presentence be disclosure See mandatory reports. should Procedures, The report Alternatives and Sentencing supra. had been advanced basic arguments discussed three Id. 216. With disclosure. at respect opposition information, it concluded feared of sources of drying up id. at was factual basis for the there little fear. of members experiences it referred to the supportive was where disclosure systems had lived under Committee who would that disclosure With suggestions routine. respect in most noted that involve undue the Committee delay, 4.5 conference (see instances appropriate presentenee § event, that, in any delay and 226) at would avoid such (b), pro- conducted justice required that properly non- because of than less “be rather more ceeding protracted respect Pinally, 222. Id. at disclosure report.” with- be should matters to the suggestion diagnostic chances harm defendant’s held when their disclosure might not this could noted that rehabilitation, the report information “as disclosure denying a reason accepted relevant Id. at 223. point.” not well Committee, while out that there pointing disclosure, expressed grounds be constitutional for requiring should not be con- exclusively matter thought trolled constitutional considerations. It noted that “as matter of that disclosure of persuaded policy will in- to be because such ought required practice will crease the fairness of the because it increase the system, *8 fairness, of because will assure a appearance greater Id. determination.” at accuracy sentencing the degree which was made the specific by 224. recommendation which in 1968 House of by Committee and was the approved formulated, American the Bar Association Delegates in the terms: pertinent part, following requires (a) Fundamental the sub- fairness to the derogatory adversely in- of all which his stance information affects open terests which has not disclosed in court otherwise been
137
defendant,
attorney,
called to
attention of
should be
acting
others who
on his behalf.
are
implemented by requiring
(b)
principle
should
This
attorney,
permit
or the defendant
court
defendant’s
prosecution
inspect
attorney,
report. The
himself if he has no
to
In ex-
to the defense.
should also be shown
if it is shown
except
permitted
traordinary
cases,
from dis-
to
the court should be
proper sentence,
parts
relevant
closure
of the
which are not
program
diagnostic opinion
might seriously disrupt
of re-
which
habilitation,
has
obtained on
been
sources
information
* * *
promise
confidentiality.
Id.
213-14.
at
movement
towards
disclosure
mandatory
The significant
influenced not
only by
undoubtedly being
persuasive
but also
the recent
Court
by
Supreme
academic writings
expanded
which have
greatly
strengthened
decisions
of the accused. Thus he is entitled to
individual
rights
all critical
stages
proceedings
counsel
throughout
335,
792,
83
Ct.
9
372
S.
S.
Wainwright,
v.
U.
(Gideon
v.
sentencing. Mempa
L. Ed. 2d 799 (1963))
including
254,
J. Cases,” 33 F. R. D. 47 in Federal Criminal sium, “Discovery entitled be confronted by and is of course (1963)) Texas, 400, him. Pointer v. 380 U. S. witnesses against not, L. Ed. 2d 923 He after 1065, may Ct. (1965). the basis of another one be sentenced on charge, conviction on Patterson, heard on which he was not (Specht charge and, 1209, Ct. L. Ed. 2d 326 605, 87 S. (1967)) U. S. “critically he not be subjected important” in general, to be heard determinations without meaningful opportunity Kent v. counsel. representation by meaningful Of. States, 86 Gt. 16 L. Ed. 2d 383 U. 8. 8. United Court, that an where the accused holding 84 (1966) aof waiver entry was entitled juvenile (before favor the District hearing Court in Court) Juvenile social records access his counsel to the pertinent including *9 138 out that the to right represen probation reports, pointed a mere but was “of the essence of
tation was not formality 1057, 561, 383 U. at 86 Ct. at 16 L. Ed. 2d justice.” S. S. Gault, 18 1, 34, 1428, In re Ct. at 97. See 387 U. S. 81 Harv. L. Note, L. Ed. 2d 550-51 (1967); supra, Rev. at 828-829. can be
It is indeed difficult to see
there
meaningful
how
is
counsel at
time when there
representation by
him
materials
no disclosure to
on
presentenee
And
without
such
surely
the sentence is
based.
being
he
in no fair
to determine whether an
materials
is
position
should be taken from the sentence
how to
appeal
prosecute
review of the
appellate
it if it is taken. Although
right
sentence is not
the federal courts
yet generally recognized
United
presentence based, on which the sentence was how can process operate intelligently enough this unless the defendant knows challenge necessary about where and unless the court Certainly has the in front of it? if can is- the defendant raise report, right sues about he has a it to whether it is examine see adequate pre- legally And his case. it seems evident if the investigation part sentence, record on sentence then it appellate be made a should the record court on of the sentence. review now to the of our New
We come consideration own Jersey rules, in the field of history reports. they *10 originally 1948, our new in implemented judicial system contained a for a the provision “unless presentenee report court otherwise directs.” Rule 2:7-10. In 1953 the pre sentence report became R. R. 3 :7-10 see mandatory. (b); Pohlabel, State 242, 61 N. J. Div. 1960). Super. (App. The requirement for it was described as “a mandate of the Culver, order.” highest 427, State v. 40 N. J. Super. Div.
(App. 499-500 In 1956), aff'd, N. J. (1957). Alvarado, State v. 51 N. J. we noted recently 375 (1968) the all requirement presentenee report applies criminal in the proceedings only superior not those including and county courts but on also those in the courts municipal waivers under N. J. A. 2A :8-22.
The rules did not deal with matter of specifically disclosure. In practice there was some discretionary par tial disclosure but no right disclosure was In recognized. 1956 Professor Knowdton of Law Rutgers School presented paper strongly advocated mandatory disclosure and Gaulkin, then a Judge member of Court, the Essex County submitted a paper both of the were opposition; papers reprinted New Knowlton, Law Journal. Jersey “Should Presentence Reports Defendants?,” Be 79 N. J. Shown to L. J. 409 Gaulkin, “Should Be (1956); Reports Presentence Defendants?,” Shown to 79 N. J. L. J. 421 (1956). years, Court have dealt with
ensuing fully committees of this recommendations. subject have submitted pertinent In 1963 the Committee on Procedure recommended Criminal “a of summary disclose that, upon the court should request, the material contained in the afford opportunity to the defendant or his counsel to comment thereon.” There awas proviso that sources of confidential information “[t]he not, however, need be disclosed.” Proceedings of Judicial the New Conference, Report Supreme Jersey Court’s Committee on Criminal Procedure In 1965 (1963). on Rules of the on Criminal Subcommittee Committee “a Procedure recommended that copy presentenee re attorney shall be furnished to the defendant port except por- certain direct that that the court in its discretion Proceedings copy.” tions of from said the same be deleted Jersey New 1965 Judicial Conference, Report the Committee on Rules Court's Supreme Subcommittee A recommendation on Procedure (1965). Criminal Revision 1966 Proposed in the same effect was contained Jersey; of New of the State the Rules the Courts Governing adopted ultimately however, Revision, as it directed but not the recommendation embody did otherwise confidential, unless “shall be presentence report R. 3 :21-2. court order.” rule or provided by During period which our commit court appointed tees, others, de were along fairly broaden seeking *11 disclosure, fendant’s in connection with our rights presentence indi court decisions broadening State were pointedly his right vidual the accused in divers Thus aspects. rights firmly was at as well as earlier sentencing stages to counsel Jenkins, N. J. 109 State v. 32 (1960); State recognized. cf. Kramer, Div. His 1967). right v. 98 N. J. 539 Super. (Law in the federal than that allowed to wide even wider discovery, Cook, N. J. 560 v. 43 State similarly recognized. was sphere, Johnson, R. 3 :13—3. 28 N. J. 133 (1958); v. State (1965); aas second not to be sentenced conviction, after His right, notice and op afforded proper being offender without first whether was such an offender to be heard as to he portunity Booker, v. 88 N. J. 515 Super. in State was upheld Laird, J. v. 25 N. 298 (1957). Div. State 1965); (App. cf. conviction, not to be under after sentenced right, And his J. A. 2A:164-3 et without (N. seq.) Offender Act the Sex him report bringing Center’s Diagnostic disclosure of the thereon, to be heard Act, with along opportunity within the v. 25 J. 161 In Wingler, State N. upheld (1957). call we noted that the Act did not for Wingler expressly assumed, to hearing prior disclosure we sentencing decision, that it was not constitutionally of our purposes that the interests nonetheless we were convinced compelled; for predis- requirement would be advanced justice
141 closure of fair for hearing thereon opportunity and to that end we ordered issuance of appropriate administrative 25 179: directive. N. J. at see R. 3:21-3. even more
Perhaps than of the significant foregoing has been the experience recent review appellate The defendant’s from his right appeal sentences. sentence has excessive become established in our manifestly firmly Johnson, within the decade. State v. only past State See 67 Laws, N. J. Div. see also v. State Super. (App. 1961); Bess, N. J. v. (1968); 53 N. J. (1968); State Hicks, 54 N. J. 390 State (1969). Bess the defendant was convicted of murder the second degree was sen tenced to ten fifteen years State Prison. Pie appealed from his conviction and sentence. We found no error in the but, after finding guilt the trial record examining and the report, concluded that presentence his sentence was clearly It was excessive. reduced no than more nor five less than N. J. 19. years. two at in Hides Similarly, we concluded, examining after the trial record and the presentence report, the defendant’s sentence of twenty to twenty-five years was too severe reduced it to not less than six nor more 54 N. J. years. than at 392. eight Rubin, 42 F. R. supra, made D. at 217 point review of effect that cannot appellate operate told unless the about
intelligently enough report to challenge any contents relevant *12 beyond to be errors, appear dispute. would And some of illustrate, without such vividly own cases disclosure our there at assurance, original either the be no sentencing can level level, that report at the appellate adequate and Pohlabel, v. 61 N. supra, State J. Super. 242; accurate. See Barbato, 89 N. J. 400 Super. (Union Ct. Cty. v. 1965); State Leckis, 479 Super. 79 N. J. Div. (App. v. 1963); State cf. Myers, v. 374 F. 2d ex red. Jackson States (3 United Killian, 91 Ariz. 370 P. v. 2d State 1967); Cir.
(1962).
In Pohlalel the defendant forged seven checks totalling $1,467. non in 1951 pleaded He vult to the indictments re- turned him received seven five against year and three to terms, consecutive totalling twenty-one thirty-five years. In 1959 the defendant learned of portions presentence and that inaccurate in- report misleading contained and of and formation. He for vacation his sentence for applied in the joined applica- resentencing. Though prosecutor tion the Law Division denied it. The Appellate Division an reversed in which detailed opinion the inaccuracies in and the probation report misimpressions from it which caused undoubtedly excessive grossly punishment. If N. J. at 252. been there had of Super, predisclosure at meaningful and time representation sentencing well have received might defendant concurrent rather than been consecutive terms have might justly spared the ad- which had ditional of confinement been jrears already served. Procedures, Alternatives at Sentencing supra See 218. In Barlaio defendant for petitioned post-conviction a five to year relief from seven sentence been which had im- without allocution. The sentence was posed improper (State Laird, J. Super. 85 N. Div. (App. but 1964)) since served the fully county it had been court thought However, be denied. should the course of its petition severity the court discussed the of the sentence and opinion view the defendant had been the “victim expressed on resulting from misconception an injustice J. 406. Super, 89 N. at judge.” Here dis- would have representation avoided meaningful closure plea guilty In Leclás accepted error. unfairness who was sentenced unrepresented from and one-half to seven years. of six a term Prison State the Appellate Division ex- proceedings corpus hateas later found it wholly inadequate. amined in the record that if the indications en- strong referred It had question been dis- the occurrence background tire offense “might well the defendant’s have degree closed, the *13 been tempered his punishment proportionately lightened.” 79 N. J. Super, at 486. To justice, effectuate the Appellate Division reversed remanded the mat- entire ter for appropriate proceedings; say, needless to here again fair course would have entailed disclosure representa- tion at the time of sentencing.
The situation the Kunz ease at hand furnishes another apt illustration of the need disclosure meaningful representation at time as well on sentencing The appeal. defendant was with charged having purchased Degenshein Cadillac with knowledge that it was stolen. He denied but the knowledge jury found When against him. the pro- bation officer to him spoke before sentencing the defendant- in his denial. persisted At time the defendant had not seen the presentence counsel, and his having specifically it, been denied to examine his opportunity made argument to the trial on the basis the trial pro- ceedings which contained to indicate nothing any involve- ment beyond the single purchase Cadillac. Degenshein But which the trial probation report had be- him fore stated was other flatly there involvement and that the was the New Jersey defendant “contact” for a stolen vehicle and had been involved with several ring other identified of stolen vehicles. This much purchases charge, than on more the one sweeping him
tried, was never and is now preferred against vigorously him. As matter fundamental denied fairness he heard on it before it can form entitled to be properly increasing severity punishment. basis of suggest did the probation not officer this untried with the charge had discussed defendant or did contain statement his counsel. It effect that had been confronted the defendant earlier although he “would of his involvement not larger plead evidence resulting his present thereafter went guilty” N. J. A. Just under 2A-.139—1. where conviction information received his does not appear officer probation *14 event, there is any nothing suggest report. the or else in the anything the aforementioned statement either attention of the defendant his was called to the report at with the or indeed sentencing any counsel in connection for the Counsel appeal. to the on the prior time argument dark and his the was the participation based his He sentencing hearing largely meaningless. the on record of the trial whereas open judge stand report. presentence Surely based sentence on the closed does within with its cross bases not fit type this of hearing administration of concept justice. rational sound any us trial should have judge It is clear to entirely defense counsel at for sentencing acceded to the request report; accordingly to review opportunity presentence after the de- resentencing matter will be remanded for been furnished with and copy report fendant has any to meet been afforded fair opportunity prejudicial has may sentencing. material which play part to announce Furthermore, we take this occasion en will be in all future defendants sentencing proceedings, with fair to disclosure of titled be on adverse matters relevant to heard opportunity argu constitutional persuasive sentencing. Although Alternatives Sentencing ments have been advanced (cf. Procedures, not taken as 223-24) step at this supra being compulsion Supreme a matter of constitutional do not it v. United Gregg to date dictate holdings (see Court States, 442, 22 L. Ed. 2d 1134, 89 S. Ct. 489, U. S. York, New 337 U. S. supra, Williams v. (1969); L. we Ed. are not now prepared Ct. 1337)) dimension under our State it is of constitutional find that a matter rudimentary It is taken as being Constitution. entail administrative some may fairness though be minimized readily by proper handling. can they difficulties first be examined may presentence report Thus the no in the actually play matters which will so that judge In this fashion ir be excluded. sentencing may process eliminated, relevances be confidential sources may may protected, disclosure be avoided of diagnostic matters 'which would be harmful to the defendant’s rehabilita tion if he were told them. The report, about as thus edited defendant, furnished must of course contain in toto the presentence material which will have what any bearing ever on the and the trial must so recognize in his deliberation and determination. Stales,
In Putt v. United
The as we have outlined sentencing hearing, will fairly of the defendant as well rights and, as the State protect fashion, conducted commonsensible flexible will not undue or undue burdens any delays entail on the judicial when report, The accurate and system. probation adequate, will matter remain practical generally as unchallenged. challenged, may Even where it is disclose inquiry quickly to matter of relates insufficient challenge importance to and, in such taking proof event, warrant the trial declare. matter so may challenged disregard instance where challenged in the occasional only It further process the sentencing matter is crucial to in- but, clearly, here the risk of will be called step There without proof. is far too great proceed justice they but incidental procedural questions additional from time to time. they be dealt with as arise readily can 25 N. J. at and as in Wingler, supra, In the meantime with disclosure directive dealing administrative suitable and distributed. will be prepared reports Kunz stands the defendant against conviction judgment is: his is set aside the cause rendered but sentence for resentencing. Remanded to the court
ADDENDUM: An Amend to Include Appeal Appeal On Motion to Conviction. from Judgment Pee Cueiam : The of the defendant Kunz to appeal this Division for certification to Appellate petition were Court addressed to his sentence. The solely appendix did not contain the but at charge argument court’s oral had counsel indicated that the trial erroneously charged found if knew “or defendant could be he guilty known” ad- should have that the automobile was stolen. We *16 that, time, liberty vised counsel out of he was at long though make a appeal to motion leave to from the conviction We of this error in the itself because asserted charge. a have since received notice of motion and accompanying solely brief but are addressed to of the they portions charge the N. J. A. judge read S. 2A:139-1 and stated of stolen that within one from possession property year a the date of its theft raised presumption knowledge. Nowhere in was there the charge any that suggestion the be found a merely defendant could on that guilty showing stolen; should have known he that the automobile was on the the trial contrary, during the course of judge charge
147 explicitly told that the was jury the State to establish required beyond reasonable doubt that was stolen and property the defendant received it it was At knowing stolen. the close of the counsel he charge for defendant stated that “no We had have examined not entire exceptions”. only the but all of the trial as well charge and are satisfied testimony error in the within charge was neither plain error B. B. B. 1:5-1 nor such as (ct) (now 2:10-2) impair and validity of the verdict of justness jury’s guilt.
The motion is denied. J. (dissenting) outset, At the it should Haneman, remembered that presentence had their investigations genesis in the desire to worthy increase individualization treatment of convicted As noted in majority offenders. opinion, in investigation designed to benefit the dividual offender making available sentencing a sound and complete knowledge defendant’s charac ter, and mental background, physical make-up many other factors. The attempt objective attain is not new. York, As noted in Williams New U. 241, 246, 8. L. 1082, 1337, Ed. 1079, Ct. : (1948) * - “* and since American both before colonies became na- country practiced tion, England policy courts in this and in under could which a exercise wide discretion types determining him sources of evidence used to assist punishment imposed by- kind and extent of to be within limits fixed frequently, law. Our-of-court affidavits have been used and of course sentencing judges naturally the smaller communities in mind have personalities knowledge backgrounds their and. of convicted offenders.” B. :21-2, To our that end effective September in part: provides imposition granting probation or the “Before the sentence probation of the court make service shall investi-
gation confidential, court which shall be unless provided by rule or court order.” otherwise *17 148
The concerned, which we are is the ne- question cessity for and effect of a deletion of much of that rule so as makes the confidential. of a disclosure of a necessity effects complete and often been debated and
presentence report, long have discussed. Eor reference see:— — “What for Presentence Sol Rubin Privacy Reports” 8 1952) 16 Fed. Probation (December — “The Presentence Reports” Mature of Confidential — Law 5 America Rev. 127 Louis J. Cath. U. Sharp (1955) — “Should Presentence Defendants” Reports Shown to — E. N. J. Prof. Robert Knowlton 79 L. J. 409 (1956) — “Should Presentence Be Shown To Defendants” Reports — n J. L. Hon. Edward Gaulkin 79 N. J. 421 (1956) “The Presentence Must Pre- Investigation Be Report — (cid:127)— as a Document” B. served Confidential James Parsons 1964) 3 28 Fed. Probation (March A “Confidentiality of the Presentence Middle Po- Report: —(cid:127) — 28 Fed. Probation 8 Roszel C. Thomsen (March sition” 1964) in West Reports “The Defense Presentence Disclosure — — L. D. W. Rev. Virginia Willard Lorensen 69
Virginia” 159 (1966-67) — John P. Reports” Hig- of Presentence “Confidentiality — Law Rev. 12 Albany (1964) gins In- Confidentiality the Presentence “The Position (cid:127) — n — W. Law Albany Albert Roche Report” vestigation Rev. (1965) — — P. John Higgins to Roche” Albany “In Response (1965) Rev. 225 Law Association, Relating Standards Sentenc- Bar
American Procedures, 200 (1968) Alternatives ing Reports of Presentence and Disclosure “The Use — — Lehrich 47 Fed. Rules De- Richard States” United (1969) cisions *18 an
Accordingly, extensive repetition in of the depth pro contra is arguments not but a more discus- required limited sion will suffice. The of a primary ground objection the to full disclosure is the conviction that the result will be a (1) of drying-up the factual and information opinion obtainable and includable for consideration the by judge, (2) further of an burdening overburdened criminal already ju- dicial system, a by to a full according right trial of the facts and in opinion contained It is report. accord with the rationalization my of the foregoing objections this dissent. prompts I realize that there is no way how ascertaining many defendants have been affected unfairly unfounded, by undisclosed, unfavorable information. Concededly the matter sub judice case presents very sympathetic for partial dis- However, closure. rather than to jeopardize admitted benefits now accrue to convicted defendant under rule, existing untried employing experiment, I would advance more cautiously and grant other something than disclosure. would I complete Particularly so proceed, in the absence of for a proof necessity drastic other than the isolated case now change before this Court. Ho such should be made unless the Court is change reasonably certain of a more or less common repetition errors.
In seeking prognosticate to results of a mandate that every convicted defendant shall have the unrestricted right receive an unexpurgated copy of the presentence report which the upon relies, we judge actually should lean heavily upon practical experience advice of officers probation who are the best persons to evaluate qualified re- probable sults and in whose expertise unbiased interest proper defendant, sentence for obtaining there should exist complete confidence. The following statement of Roche, W. Albert Senior Probation Examiner New York State Department Correction, Probation, Division of Review, in 29 appears Albany Law at is typical of the reaction of probation officers: oppose proposition “Further, of disclosure believe those who therapeutic destroy procedure large such a to a extent ‘that would would, fact, in obliterate . . and time of the documents . usefulness very since the sources means which information is assembled preserved.’ longer no would be could be assured confidence essence, hold of non-disclosure the revelation the advocates pro- presentence report the defendant the information drying up Much of sources information. voke the of essential judges if informants data not available now available to would consequence, might, they a sub- as a become involved knew that sequent deny controversy proceedings. the courts court To complete type of would services this information the correctional up only progress which to undermine the has been made tend *19 justice penology. and in field of criminal date broad the gathering per- question, and use confidential and Without the problem presents a concern those en- serious and to sonal information gaged possess protec- probation do work. Probation officers not the in clergy. Set, privilege granted lawyers, doctors and the to tion of they every personal. bit as information intimate deal many supply Experience informants who social has demonstrated relationship only If this so in confidence. between the information do
probation be of its to divested confidential others were officer severely certainly crippled, nature, in would be the due time service destroyed.” not if a In no other state does there exist mandate complete, disclosure. California and unrestricted the United Although of Maryland, District Court have been at times cited States disclosure, such does complete as neither court requiring In California “matters that so are deemed to be require. come the in a confidence to exceeding judge separate are not notation or letter and disclosed to other any persons.” Review, Law supra, at 213. In the Albany Maryland Court, District the is described: proceeding “* # * n ipjle Judge procedure Maryland in as described Chief pre report substantially Roszel pared as is C. Thomsen is follows: parts. part part in and the two sets out the facts other One probation officer, which is never contains the recommendation the However, the counsel made available to may defendant his counsel. copy judge’s in the room read the either in chambers or court upon prior probation is to to sentence. The invited comment way. any is nor to in If officer not cross-examined called account probation lawyer, does officer outlines the defendant not have questions report him contained in answers the facts might body report any con be raised. If contains probation not fidential information which the officer believes should may defendant, attention of made known to the he call that to the be Here, court and such information shall be withheld. disclosure, recognition regards than is which less strict others knowledge given when full of all fact ‘that there are times very disturbing defendant’s fu the contents of could be ” Albany Review, supra, adjustment relationships.’ Law ture at 213. will be the in the Jersey only judicial system New United where no discretion whatsoever is vested the sentenc- States on disclosure of the final report. ing judge The majority opinion provides: “* * * report may be examined first actually play part so that matters which will no in the sentenc- may ing process may be excluded. this fashion irrelevances be eliminated, may protected, confidential sources and disclosure diagnostic be avoided of matters which harmful de- would be if fendant’s rehabilitation he were told about them.” furnished presentence report is to be
If fair to be heard on furnish him “with opportunity order to follow it must relevant to the sentencing,” adverse matters from the matters to exclude authority refer to the must sentencing process no play final which the judge and not the report upon initial report *20 in to delete is vested the authority judge relies. No — — from the final report information source or otherwise conceivable hardly to the defendant. It is delivery before a a would the rely reported reputation that judge upon the names of those defendant without furnished with being information was elicited. The judge from whom that persons account, reliability take into in determining would also the nature and of the estimation of defendant’s reputation, such furnishing to defendant of those relationship persons inextricably The and its source are analysis. reputation opportunity no Accordingly, meaningful tied together. in and conclusion contained of attack of the facts type be afforded final can by majority, report, suggested be disputed sought of the material
unless the source re- ultimate remain in the neither must furnished. Both or judge. to the sentencing submitted port action and subsequent The disclosure procedure concerning How- strokes. in' broad majority is delineated opinion receipt understand, following the mechanics ever, as I as follows: are report, the trial judge pro- will advise the judge 1. After of the study report rely not going which he is of the items upon bation officer be excised. these items direct imposing sentence receive or his counsel shall 2. and the defendant all informa- must contain of the redrafted copies in the sen- any bearing have or will tion which play tencing procedure.
3. The defendant may of the challenge any matter if so shall challenged be entitled to full-blown trial of to controvert. any subject he desires if a
Apparently, pre- desires to contradict sentence report there must be an adversary proceeding which the probation officerwill bear burden of proving of the factual validity statements the character concerning analysis of defendant. That inter- officer and the witnesses viewed him will be the to direct subject first witnesses and cross-examination. It seems individuals apparent interviewed who cannot be assured of their will anonymity refuse to make any statement rather than to risk a court ap- This conclusion pearance. seems well supported by “non-involvement” present attitude of many public, as well as the desire not subject to have to and be testify occurs, cross-examination. if this the fear Mr. Clearly, Roche that informational sources will is well dry up, justified. we reach the where all point Conceivably will receive is a record convic- sentencing judge prior — of an aid hardly tions much for the and little help injustice defendant. Much must arise if the court is to the — in a un- to sentence vacuum complete partial required aby meaningful probation report. assisted *21 A trial contest of will type also report place further burden 'unnecessary on already overburdened trial court. Although it has been the court suggested may greatly restrict proof by be requiring limited hearing “matters relevant to the it would seem sentencing,” to me that any matter which the to remain in judge permits a re- * * * is matter will port “which actually play [a] and must of sentencing,” necessity, therefore, be relevant subject to attack. It is not a isolated single statement of one individual which judicial furnishes the basis for deter- character but the sum total of mining many statements, each of which would therefore be to attack. To subject demonstrate disclosure, effect of possible reference is made to State v. Marvel, 55 N. J. 83 On (1969). this Court appeal, permitted defendant, examination by rule, under the existing of the Defendant’s presentence report. objections to the en- four compassed typewritten pages.
I am in accord complete with the ma- statement that: jority opinion ability judges “The of trained to exclude from their consideration improper
irrelevant evidence materials which have come certify appellate purposes, their attention and to so for has been recognized throughout our law. We have no to doubt reason may properly applied sentencing.” be in the field of To a somewhat lesser extent this also to trained applies proba- tion officers. Such ability sentencing combina- tion with that of the probation officer should sufficeto assure a defendant that there will be few, if any, irrelevant and im- properly presented matters and that such as do find their into a way will be ignored. Certainly confidence must be in the placed irrelevant and im- ignore proper evidence and materials and also to some require proof of doubtful items. If there disclosure, ground universal, revelation should be less than absolute and uncon- ditional. Johnson, 28 N. State J. 133 this Court (1958),
stated: *22 except by ordinarily “A rule should not be revised or abandoned power. problem rule-making is such of The nature the exercise of judicial explored at such time it should be at a conference may appropriate, so im- to consideration seem be to the end upon hearing portant proposal rather than a be considered full upon to an individual chances come the naked record of ease which (at 143) us.” before rule here, a which by
So I see no reason to amend opinion and considera- after recent discussion adopted lengthy 8, 1969. tion and as late as September which became effective be If in it should accom- any the rule is change required, rule after deliberate an amendment of the itself by plished with and sentencing officers study probation discussion manner, amended, rule is the entire if the this judges. left in- out detail and not could be procedure spelled dividual interpretation. a amendment furnish framework
The rules without present this: to that now before Court within matters similar which B. 3:21-2 provides sentencing of. can disposed a transmittal statement include such judge “may him.” B. 3:21-4(b) imposed by pro- for the sentence reasons in part: vides imposing “Before sentence shall the court address the defendant
personally him if he and ask wishes to make a own statement present punishment.” mitigation behalf and information The of these combination two rules should furnish defendant with the information and to learn opportunity required If, contest that which he considers untrue unfair. how- or ever, clarity, the latter rule could be amended to required a mandate statement sentencing judge detailed afford defendant to chal- affirmatively opportunity end, To that presentence report. after lenge verity for his has announced the basis sen- sentencing judge tence, defendant could be accorded an opportunity, by those ele- type disprove accuracy procedure, character fact, ments of which the reputation states he are finds essential elements undergirding I would determination of the of sentence. type length not testi- oblige officer to sustain his probation mony court nor would I the disclosure open permit informational is bottomed source upon with the officer. This except pro- consent of the probation fair method to pro- would furnish ceeding fundamentally tect inaccuracies and yet protect against revelation. length confidential sources of items from *23 number of be reduced. trials would also
I would here remand to the for a certi- jrtdge, fication as to what the several part of the portions presentence in a his of played sentencing, giving copy that statement. I would retain so that if de- jurisdiction fendant desires to contest the of accuracy any of portion matters contained in the certification the sentencing judge, this Court determine whether to remand for again trial thereof. any portion J. (dissenting) As Justice Haneman points Francis, out, Buie 3 :21—2 was adopted than less three months Al- ago. somewhat though revised in form, it preserved the presentence report’s confidentiality, its principal characteristic since the advent of our new court in system 1948. The in change form was intended to indicate to what had sentencing judges been made plain through many conferences on proposed changes e., rules of practice and i. procedure, that disclo- sure of all or only report was matter for the fair exercise of their discretion. Adoption rule by majority the Court was not a de- will-o’-the-wisp cision. The has been problem bruited about for many years and deliberated upon committees of by experienced trial bar, members of the judges, and probation officers. The de- cision reached always by of this majority Court was that remain confidential, should for those mat- except ters which the sentencing in his discretion felt should or, be disclosed to the convicted defendant, the alternative, 156
should be a factor by influencing excluded determination of imposed. my judgment the sentence to be well, worked and with the rare practice exceptions has the benef subject, human institution is has served the offender icent social fit making penalty purpose White, N. J. v. as well as the crime he committed. State I Consequently, opinion). (1958) (concurring reassertion of the pronounce with Justice Haneman’s agree Johnson, 28 N. J. ment of this Court State 370, 7 L. Ed. 2d 933, 82 Ct. cert. den. U. S. (1958), revised or ordinarily “a rule should not (1961), rule-making power. an exercise of abandoned except it should be explored is such problem The nature of the ** conference judicial at in Rule 3:21-2 about change brought The convulsive contrary in this ease is to the sound view ex- majority opinion v. Johnson and is unwise and at inexpedient State pressed are in- Our criminal lists overflowing, this time. A trial which is day. speedy is the order of delay ordinate as an effective deterrent standpoint from public so important law is the exception violators of the criminal to potential are various reasons for the length- than the rule. There rather them on not the least of being hearings criminal ening process, *24 evidence from al- resulting suppress motions to many officers, and by police seizures searches and illegal legedly conviction innumerable post proceedings. on almost hearings burden to heavy already now adds a majority opinion But the most dis- and trial judges. trial lists over-burdened and without warning so without is that it does aspect turbing and bur- procedural administrative consideration prior officers. and probation county judges den thrown upon if ob- It to me that wishes to do what majority seems do, it the present it has the to should decide viously power manner hereafter case, and very easily justly as it can study attention to the necessary and some give suggested, for the guid- of administrative procedures and formulation and county probation depart- sentencing judges ance of ments. Tt is no and secret that in the past county judges dedicated a officers have been blanket probation opposed to rule under which be turned would presentence report over routinely to the convicted defendant. judges These officers probation vineyard. are the laborers in the We should not them with this new open inundate floodgates burden when their could aid us expertise regulating it. I Justice Uaneman dis- join controlling Accordingly, from departure from the senting majority’s summary Rule 3:21—3. adopted Assuming Court’s so recently come after only is desired it should change majority, practically study implement and conference designed for the benefit of all concerned. above,
As mentioned the present case should not be treated as the vehicle for abandonment of Buie :21-2. I that agree the trial should not have permitted the alle- unproved in the gation probation a that the defendant was a member of stolen car to be an ring influential factor in his consideration of the sentence be But imposed. there in the record to he nothing indicate that influenced it in way.
It is from the plain probation report that the defendant knew of the that allegation he was “contact” man in New stolen Jersey car ring. fact it appears in the report he was “confronted” with the State’s evidence which al- legedly supported he charge, denied any such involvement. an experienced Consequently sentencing judge, in the use of educated proper probation report through many conferences and judicial committee on reports the sub- would and should know that the ject, unproved suggestion additional criminal involvement he must disregarded. So in this case is: Did question the trial simple judge exclude it from consideration deliberating upon the sentence to did, ? If he Therefore, ends matter. I imposed would certify this trial us whether ask the alleged col- involvement was criminal factor which lateral influenced his *25 defendant for imprison one two years State decision certification, which I expect Prison. return of Upon faith and in our good conscience, would be furnished good If should be made. the improper disposition appeal sentence, in the material was not factor the judgment factor, was a the record affirmed. If it then should should be for court reconsideration of the be remanded sentence. resentencing Justice Weest- For remandmeni for —Chief Proctor, Jacobs,
traub and Justices Hall Schettino —5.
For remandmeni Eranois certification —Justices for Haneman —2. A, OF J. BI VON
IN THE MATTER MICHAEL AT AN ATTORNEY LAW. Argued 1969. 1969 Decided December December Jr. argued Mr. M. cause Lyon, Bergen Samuel Committee. Ethics County of Respondent. on behalf appearance
No