Faas v. Zink

• Decision Date: 30 July 1957
• Docket Number: No. A--458,A--458
• Citation: 137 A.2d 575,48 N.J.Super. 309
• Parties: Frederick A. FAAS, Plaintiff-Appellant, v. Homer C. ZINK, Chairman, State Parole Board, Defendant-Respondent. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 309

48 N.J.Super. 309

137 A.2d 575

Frederick A. FAAS, Plaintiff-Appellant, v. Homer C. ZINK, Chairman, State Parole Board, Defendant-Respondent.

No. A--458.

Superior Court of New Jersey Appellate Division.

Argued July 15, 1957.

Decided July 30, 1957.

Everett T. Denning, Belleville, argued the cause for plaintiff-appellant.

Eugene T. Urbaniak, Deputy Atty. Gen., argued the cause for defendant-respondent (Grover C. Richman, Jr., Atty. Gen., attorney).

Before Judges HUGHES, COOLAHAN and PRICE.

COOLAHAN, J.S.C. (temporarily assigned).

This is an appeal from an order of the Superior Court, Essex County, which denied certain relief sought by plaintiff-appellant, Frederick A. Faas, an inmate of New Jersey State Prison at Trenton. Faas was sentenced on April 6, 1949 to two consecutive terms of 10 to 12 years. These sentences were regarded as one by the Parole Board and in effect were considered as one sentence having a maximum term of 24 years and a minimum term of 20 years. The order under review dismissed Faas' appication for a declaration by the trial Court that he was entitled to automatic parole at the expiration of the minimum of the first sentence and at that time began to serve the minimum of the second sentence.

The State does not dispute Faas' claim that his consecutive sentences were improperly aggregated by the Parole Board. This concession by the State is in consonance with the 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), wherein the court declared such aggregation improper.

The record discloses that Faas originally protested the aggregation of his sentences directly to the Parole Board. The Parole Board in turn advised him by letter that the sentences would not be so considered. He was further advised that thereafter he would be considered for parole on individual sentence basis in accordance with the provisions of N.J.S.A. 30:4--123.17.

The plaintiff-appellant, Faas, now contends before this court that he had a constitutional and statutory right to be considered for parole by the Board on his first sentence in accordance with N.J.S.A. 30:4--123.10. The pertinent portion of such statute reads as follows:

'No inmate of a penal or correctional institution serving a sentence for a fixed minimum and maximum term shall be eligible for consideration for release on parole until he has served his minimum sentence or 1/3 of his fixed maximum sentence, less, in each instance, commutation time therefrom for good behavior and for diligent application to work assignments whichever occurs sooner * * *.'

In other words, claim is made by Faas that he was eligible for parole consideration on his first sentence when he had completed one-third of his maximum less commutation time, to wit, some time in July 1952. While consideration for parole is a right fixed by statute, N.J.S.A. 30:4--123.17, the granting or withholding of parole is a function reposing exclusively in the Parole Board, and there is no such thing as a 'judicial parole.'

Parole is a favor granted by the State and the Board may attach to it such conditions, in deciding who is eligible for consideration for release, as it may deem proper.

In Zink v. Lear, 28 N.J.Super. 515, 101 A.2d 72 (App.Div.1953), it was held that parole presents a question of statutory construction and no constitutional right is involved. Fleming v....