New Jersey State Parole Bd. v. Byrne

• Decision Date: 18 January 1982
• Parties: NEW JERSEY STATE PAROLE BOARD, Respondent, v. James BYRNE, Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 540

182 N.J.Super. 540

442 A.2d 1032

NEW JERSEY STATE PAROLE BOARD, Respondent, v. James BYRNE, Appellant.

Superior Court of New Jersey, Appellate Division.

Submitted Jan. 4, 1982.

Decided Jan. 18, 1982.

Stanley C. Van Ness, Public Defender, for appellant (Jane Ellen Haburay, Asst. Deputy Public Defender, of counsel; Lawrence Y. Bitterman, Asst. Deputy Public Defender, on the brief).

James R. Zazzali, Atty. Gen., for respondent (Andrea M. Silkowitz, Deputy Atty. Gen., of counsel; Lyle P. Hough, Jr., Deputy Atty. Gen., on the brief).

Before Judges ALLCORN, FRANCIS and MORTON I. GREENBERG.

The opinion of the court was delivered by

MORTON I. GREENBERG, J. A. D.

We deal here with an appeal from a decision of the New Jersey State Parole Board in fixing the parole eligibility date of an inmate under the Parole Act of 1979, N.J.S.A. 30:4-123.45 et seq. The Legislature, in adopting that act, shortened parole eligibility dates for inmates who were repeat offenders and whose parole eligibility date had been set under prior law. The Parole Act of 1948 had provided that a second, third or fourth offender as defined in the act would respectively be eligible for parole after serving one-half, two-thirds or four-fifths of his maximum sentence less time off for good behavior and work credits. N.J.S.A. 30:4-123.12. The Parole Act of 1979 shortened these periods for persons previously classified under N.J.S.A. 30:4-123.12 to, respectively, one-third, one-half and two-thirds of the maximum sentence imposed, less time off for good behavior and work credits. Further, the Parole Act of 1979 provided that unless evidence developed or produced at a hearing showed that there was a substantial likelihood that an inmate would commit a crime under the laws of this State if paroled, he should be released when he reached his parole eligibility date. N.J.S.A. 30:4-123.53. This represented a substantial easing of parole requirements under the Parole Act of 1948, N.J.S.A. 30:4-123.1 et seq., which provided that an inmate be paroled "only if the board is of the opinion that there is a reasonable probability that, if such prisoner is released, he will assume his proper and rightful place in society, without violation of the law, and that his release is not incompatible with the welfare of society." N.J.S.A. 30:4-123.14. See Monks v. N.J. Parole Board, 58 N.J. 238, 277 A.2d 193 (1971).

The Parole Act of 1979, however, includes a provision which in certain cases will limit the benefits of the new law to repeat offenders classified under the former Parole Act. N.J.S.A. 30:4-123.51 provides that

... if the prosecuting attorney or the sentencing court advises the board that the punitive aspects of the sentence imposed on such inmates will not have been fulfilled by the time of parole eligibility calculated pursuant to this subsection, then the inmate shall not become primarily eligible for parole until serving an additional period which shall be one-half of the difference between the primary parole eligibility date calculated pursuant to this subsection and the parole eligibility date calculated pursuant to (N.J.S.A. 30:4-123.12).

The consequence of such advice from the prosecutor or sentencing court is thus to limit the inmate to obtaining one-half of the maximum, lessening of the periods for parole eligibility under the new law. N.J.S.A. 30:4-123.51 then includes a provision the validity of which has given rise to this appeal. The section recites:

If the prosecuting attorney or the sentencing court advises the board that the punitive aspects of the sentence have not been fulfilled, such advice need not be supported by reasons and will be deemed conclusive and final. Any such decision shall not be subject to judicial review except to the extent mandated by the New Jersey and United States Constitutions.

The record concerning the history of appellant's offenses is scanty. The parties agree, however, that he is a fourth offender having been sentenced to a term of not less than 15 years nor more than 17 years on April 2, 1976. ¹ Thus, he was entitled to some relief under the 1979 act. Accordingly, by letter dated April 15, 1980 the Parole Board asked the prosecutor whether the punitive aspects of appellant's sentence would be fulfilled if he became eligible for the maximum reduction under N.J.S.A. 30:4-123.51. A chart accompanying the letter indicated that appellant's parole eligibility date, if he were allowed the full benefit of the 1979 act, would be September 23, 1981, after allowance of credits. The chart indicated that if the punitive aspects of his sentence had not been fulfilled, his eligibility date would be September 5, 1982. The prosecutor, by letter dated May 29, 1980, indicated that the punitive aspects of the sentence would not be so satisfied if defendant were eligible for parole on the earlier date. The board then notified appellant by letter dated June 17, 1980 that his eligibility date had been advanced to May 25, 1983. ² He appeals the fixing of this date, asserting that the due process and equal protection rights have been violated by the procedures followed. U.S.Const., Amends. V, XIV. He further alleges that the decision by the Parole Board to limit the benefit given him under the Parole Act of 1979 is a discretionary act subject to appellate review under N.J.Const. (1947), Art. VI, § V, par. 4.

We deal first with a preliminary procedural problem. As already noted, the prosecutor, by letter dated May 29, 1980, stated his determination that the punitive aspects of defendant's sentence would not be fulfilled by the time of the earlier possible eligibility date. The parole board advised appellant of his amended parole eligibility date on June 17, 1980. Appellant's appeal was taken from the action of the Parole Board and not the prosecutor. It could therefore be argued that a review of the validity of the prosecutor's action is not before us. Nevertheless, we believe we should deal with the entire controversy on the merits. Undoubtedly there are other inmates who will also be granted partial relief under the Parole Act of 1979. Indeed, the record in this case includes a chart which shows that of 11 inmates sentenced in Passaic County by a particular judge, in seven cases it was decided by the prosecutor that the punitive aspects of the sentence would not be fulfilled if the maximum benefit of N.J.S.A. 30:4-123.51 were allowed the inmate. While we do not know how many inmates sentenced throughout the State may be accorded only partial relief under N.J.S.A. 30:4-123.51, it is certain that the issues raised on this appeal, if not decided now, will be raised again.

Initially, in considering the validity of N.J.S.A. 30:4-123.51 we must determine what factors the Legislature intended the prosecutor and judge to examine in making their decisions. It will be noted, of course, that the section is written in a most general way. There is no explicit direction that the prosecutor or court consider the circumstances of the particular crime for which the inmate has been sentenced. Nor is there a mandate that the prosecutor or court take into account the inmate's record prior to his conviction or subsequent conduct while in prison. Rather, the prosecutor and judge are simply told to determine whether the punitive aspects of the sentence imposed will have been fulfilled by the time of the earlier of the two possible shortened parole eligibility dates.

In the absence of explicit standards in N.J.S.A. 30:4-123.51 we hold that the criteria to be considered by the prosecutor and sentencing judge are implicit in the very requirement that it is they who determine whether the punitive aspects of the sentence have been fulfilled at the time of the maximum shortened eligibility date. It seems apparent that the Legislature, in directing that this determination be made by the persons or their successors who participated in the disposition of the case leading to the inmate's incarceration, conceived that they would consider the circumstances of the inmate's criminal conduct in committing the offense for which he had been sentenced as well as the other circumstances which contributed to the fixing of the sentence. This is logical since the sentencing court and prosecuting attorney would be the authorities with knowledge of what the inmate had done. If a determination of whether the punitive aspects of a sentence had been fulfilled at the time of parole eligibility was to be made on the basis of the inmate's subsequent conduct in prison, the selection of the sentencing court and prosecutor to make the determination would surely have been inappropriate. There is no reason to believe that the prosecutor or sentencing court would have any first-hand knowledge of the inmate's prison record. Rather, such information would be in the possession of the prison officials and in any event is a factor for the consideration of the parole board.

Viewed from this perspective it appears that if N.J.S.A. 30:4-123.51 is read literally, the punitive aspects of the sentence can never be fulfilled by the time of a shortened parole eligibility date. We reach this conclusion for the following reasons. The sentencing court must have included within its disposition punitive considerations. We may reasonably presume that a judge imposing criminal sentences is aware of parole eligibility laws and that from the presentence report will know the defendant's prior record. See R. 3:21-2. Events subsequent to sentencing, such as evidence of rehabilitation, can have no bearing on the punitive aspect of a sentence since a sentence had to have been imposed on the basis of events which had taken place before its imposition, which events accordingly could not be changed. Therefore, any shortening of the parole eligibility date will frustrate the sentencing judge's intentions with respect to punishing the defendant. Accordingly, if N.J.S.A. 30:4-123.51 is read literally...