State v. Gardner

The opinion of the Court was delivered by

CLIFFORD, J.

Defendants, volunteer firemen, indicted for the second-degree crime of aggravated arson, pleaded to the third-degree offense of arson. As first offenders they were therefore entitled to the presumption of non-incarceration. The trial court, concluding that the presumption had been overcome, sentenced defendants to custodial terms.

A majority in the Appellate Division, in the only one of the three opinions below that is reported, agreed that the presumption against imprisonment had been overcome, but concluded nevertheless that custodial…