State v. Braeunig , 140 N.J. Super. 245 ( 1976 )

140 N.J. Super. 245 (1976) 356 A.2d 33

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RAYMOND BRAEUNIG, PETITIONER-APPELLANT.

Superior Court of New Jersey, Appellate Division.

Argued March 2, 1976. Decided March 10, 1976.

Before Judges HALPERN, CRANE and MICHELS.

Mr. James K. Smith, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender of New Jersey, attorney; William D. Knowlton, Assistant Deputy Public Defender, of counsel and on the brief).

Mr. Mart Vaarsi, Deputy Attorney General, argued the cause for respondent (Mr. William F. Hyland, Attorney General of New Jersey, attorney; Mr. Vaarsi, of counsel and on the brief).

PER CURIAM.

Defendant was convicted for bookmaking and aiding and abetting bookmaking. He was sentenced to State Prison for a term of two to three years, fined and placed on probation for a period of 12 months following the completion of the custodial sentence.

The State concedes that the sentence imposed was illegal in that the trial judge did not have the power to impose the 12 month probationary term following the State Prison sentence. State v. Pietrowski, 136 N.J. Super. 383 (App. Div. 1975); Bonilla v. Heil, 126 N.J. Super. 538 (App. Div. 1974); State v. Fisher, 115 N.J. Super. 373 (App. Div. 1971). However, at oral argument, defendant requested the matter not be remanded for resentencing, but that we exercise our original jurisdiction and correct the sentence by vacating the 12 month probationary term.

Accordingly, the judgment below is modified so as to vacate the 12 month probationary period imposed. As modified, the judgment below is affirmed.