Citation Numbers: 152 N.J. Super. 42
Filed Date: 8/3/1977
Status: Precedential
Modified Date: 7/25/2022
In this matter we are confronted with the converse of the question raised and answered in State v. Mickschutz, 101 N. J. Super. 315 (App. Div. 1968). We are faced with the question, expressly reserved in Mickschutz, whether, in a matter within the purview of N. J. S. A. 2A:164—3, the recommendation of the Diagnostic Center that defendant be committed to an institution is controlling upon the sentencing judge who may not then place defendant upon conditional probation. The sentencing judge, satisfied “that I have to sentence under the statute,” answered that question in the affirmative. We are in respectful disagreement with that conclusion.
Needless to say, the sentencing judge must give serious consideration to the report and recommendation which are also statutory procedures and are referred to in the disposition statute. N. J. S. A. 2A:164-6. We think departure should be rare and then only for cogent reasons precisely expressed in the disposition procedure. But we are convinced from the plain language of the statute alone and measured in the context of the purposes of the act that the Legislature did not intend the recommendation to be controlling.
Reversed and remanded for resentencing in accordance with the foregoing. We do not retain jurisdiction.