Opinion
Argued January 18, 1971 —
Decided January 26, 1971.
Appeal from the Superior Court, Law Division.
Before Judges CONFORD, KOLOVSKY and CARTON.
Mr. Samuel Epstein argued the cause for appellant.
Mr. Arthur V. Guerrera, Assistant Prosecutor, argued the cause for respondent ( Mr. Robert M. McAllister, Jr., Atlantic County Prosecutor, attorney; Mr. Ernest M. Curtis, Assistant Prosecutor, of counsel and on the brief).
The appeal challenges the exercise of discretion by the trial court in imposing a 5-10-year sentence on defendant on conviction of possession of heroin consecutive to terms then being served, 2 to 4 years for possession of heroin, and 1 to 2 years for resisting arrest. We affirm.
Even considering the defendant technically not to be a second offender for purposes of the added punishment permitted by the statute in the case of a second offender, the judge had the right within his sentencing discretion nevertheless to consider the whole background of the defendant including prior convictions. There is no reason to abridge that right by mere reason of the prohibition against using the statutory scale of increased punishment in a case where the defendant's conviction for the former offense took place after the current offense was committed. For this purpose it makes no difference whether the current offense took place before or after the conviction of the prior offense, so long as the convictions for both offenses were a matter of record before the current sentencing. There is nothing in either State v. Booker, 88 N.J. Super. 510 (App.Div. 196 5), cert. den. 384 U.S. 944, 86 S.Ct. 1472, 16 L.Ed.2d 543 (1966); or State v. Johnson, 109 N.J. Super. 69 (App.Div. 1970) to the contrary.
Judgment affirmed.