State v. Black, A-1953-95T4

• Court: New Jersey Superior Court – Appellate Division
• Writing for the Court: LANDAU
• Citation: 685 A.2d 485,295 N.J.Super. 453
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Jerry BLACK, Defendant-Appellant.
• Docket Number: No. A-1953-95T4,A-1953-95T4
• Decision Date: 27 November 1996

Page 453

295 N.J.Super. 453 685 A.2d 485 STATE of New Jersey, Plaintiff-Respondent,
v.
Jerry BLACK, Defendant-Appellant. No. A-1953-95T4.
Superior Court of New Jersey,
Appellate Division. Submitted Nov. 4, 1996.
Decided Nov. 27, 1996.

[685 A.2d 486]

Page 455

Susan L. Reisner, Public Defender, for appellant (Barbara A. Hedeen, Assistant Deputy Public Defender, of counsel and on the letter-brief).

Peter Verniero, Attorney General, for respondent (Paul H. Heinzel, Deputy Attorney General, of counsel and on the letter-brief).

Before Judges LANDAU, WALLACE and KIMMELMAN.

The opinion of the court was delivered by

LANDAU, J.A.D.

Defendant Jerry Black was convicted in 1991 on counts of distribution and conspiracy to distribute a controlled dangerous substance (CDS). Sentenced to a three year custodial term, he was paroled on July 12, 1992. On October 15, 1992 he was classified as an absconder for failure to report, and a parole warrant issued.

On February 11, 1993, defendant was indicted for absconding from parole, a third degree crime under N.J.S.A. 2C:29-5b. He was returned to custody on June 16, 1995.

Defendant's parole was revoked by the Parole Board in August, 1995 and he was ordered to serve his adjusted maximum sentence. Defendant's max-out date was May 18, 1996.

On August 16, 1995, defendant pled guilty to the absconding charge pursuant to a plea negotiation in which the State agreed to recommend a three year term of incarceration concurrent to the CDS sentence being served. He was sentenced in accordance with that recommendation, and appealed.

Defendant's appeal was first placed on the sentencing calendar, see R. 2:9-11, but deferred pending full briefing by the parties. On appeal, it is argued that:

POINT I PROSECUTION OF DEFENDANT FOR THE CRIME OF ABSCONDING FROM PAROLE, N.J.S.A. 2C:29-5b, WAS BARRED BY DOUBLE-JEOPARDY AND FUNDAMENTAL-FAIRNESS DOCTRINES

Page 456

ONCE THE DEFENDANT RECEIVED AN ADDITIONAL 337 DAYS IN PRISON FOR THE [685 A.2d 487] VERY SAME VIOLATION OF PAROLE. (Partially raised below).

POINT II DEFENDANT IS ENTITLED TO ADDITIONAL JAIL CREDIT.

We deem both contentions to be without merit, R. 2:11-3(e)(2), and affirm.

Defendant's argument that he is being punished twice for the same offense is misplaced. The Double Jeopardy Clause protects against reprosecution for the same offense after conviction or acquittal, and against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 665 (1969). Article one, paragraph eleven (Art. I, p 11) of the N.J. Constitution is deemed coextensive with the federal double jeopardy provision. State v. Koedatich, 118 N.J. 513, 518, 572 A.2d 622 (1990).

Defendant has not been twice punished for the same offense. Under the present legislative scheme, N.J.S.A. 2C:43-9 places the issues of release, recommitment, and reparole after revocation of parole within the scope of the Parole Act of 1979 ( N.J.S.A. 30:4-123.45 to -123.69.) The Parole Board is generally charged thereunder with determining whether a defendant is likely to commit a further crime if released. N.J.S.A. 30:4-123.53a. If a defendant is released on parole and subsequently is recommitted upon revocation of parole, the duration of further imprisonment or recommitment under the same sentence is fixed by the Parole...