DeSanto v. New Jersey State Parole Bd.

• Decision Date: 21 December 1951
• Docket Number: No. A--713,A--713
• Parties: DE SANTO v. NEW JERSEY STATE PAROLE BOARD.
• Court: New Jersey Superior Court — Appellate Division

Page 44

17 N.J.Super. 44

85 A.2d 273

DE SANTO v. NEW JERSEY STATE PAROLE BOARD.

No. A--713.

Superior Court of New Jersey

Appellate Division.

Dec. 21, 1951.

Ernest DeSanto, pro se, for petitioner.

Theodore D. Parsons, Atty. Gen., of New Jersey (Eugene T. Urbaniak, Deputy Atty. Gen., appearing), attorney for respondent.

Before Judges JACOBS, EASTWOOD and BIGELOW.

The opinion of the court was delivered

PER CURIAM.

The petitioner, a prisoner presently confined in the New Jersey State Prison, seeks under Rule 3:81--10 to review the validity of an administrative rule promulgated on November 14, 1950 by the New Jersey State Parole Board.

Although the petition attacks the recent holding in In re Fitzpatrick, 9 N.J.Super. 511, 75 A.2d 636 (Cty.Ct.1950) affirmed 14 N.J.Super. 213, 82 A.2d 8 (App.Div.1951) we accept the principles there set forth as controlling. In that matter Fitzpatrick had been sentenced in 1945 to a term of not less than 4 and not more than 7 years and to a consecutive term of not less than 3 and not more than 5 years. The prison authorities had aggregated his sentences to reflect a combined minimum of 7 years and maximum of 12 years; under this procedure he would first become eligible, apart from commutation and work credits, for parole consideration at the expiration of the combined minimum and if paroled could be subjected to parole supervision until the expiration of the combined maximum. He advanced the contention that the aggregation of his sentences was improper; that he was entitled to parole consideration on his first sentence at the expiration of its minimum; and that if parole had then been granted he would have had the dual status of a parolee on his first sentence and a prisoner serving time on his second. With this contention the court agreed. He advanced the further contention that since he had not been duly granted parole consideration he was entitled to an automatic parole at the expiration of his minimum sentence. With this contention the court disagreed pointing out that the grant or denial of parole rests within the proper judgment of the parole authority and is in no sense a judicial function. Accordingly, the county court denied his application for relief; in affirming the Appellate Division expressed the assumption that the Parole Board would 'grant relief from any manifest injustice so far as it is within its power, and if enabling legislation is necessary, that the Executive Department will seek the enactment of such legislation.'

Under the decision in Fitzpatrick's case and pending corrective action by rule of the Parole Board or by legislation (cf. R.S. 30:4--123.10, N.J.S.A.) the board could no longer aggregate his minimum sentences but would be required, there having been no parole, to consider, apart from commutation and work credits, the time already served in prison as applicable to the maximum on the first sentence and the balance towards the second sentence and when the minimum on his second sentence arrived he would be entitled to parole consideration. This result would unfairly defer the date upon which he could receive parole consideration and be eligible for release from confinement on parole. The most effective way of dealing with the matter would have been for the board to consider whether parole should be granted retroactively with like effect as if granted at the expiration of the first minimum sentence. However, the board declined to consider the granting of retroactive parole because of its supposed lack of power to do so. We believe that it has such authority. R.S. 30:4--123.6,...