State v. Generoso

• Decision Date: 06 March 1978
• Citation: 156 N.J.Super. 540,384 A.2d 189
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Philip GENEROSO, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 540

156 N.J.Super. 540

384 A.2d 189

STATE of New Jersey, Plaintiff-Respondent, v. Philip GENEROSO, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Submitted Feb. 14, 1978.

Decided March 6, 1978.

Howard M. Stroger, Morristown, for defendant-appellant.

John J. Degnan, Atty. Gen., for plaintiff-respondent (William F. Hyland, former Atty. Gen., Edwin H. Stern, Deputy Atty. Gen., of counsel and on the brief; Anne P. Weiner, Deputy Atty. Gen., on the brief).

Before Judges ALLCORN, MORGAN and HORN.

The opinion of the court was delivered by

HORN, J. A. D.

This appeal raises two questions which do not appear to have been previously decided in our State. They are: (1) May a defendant's probation be revoked upon his uncorroborated admission of conduct which is in violation of the terms and conditions of his probation? ¹ (2) Is a probationer entitled to Miranda ² warnings before he is questioned concerning his activities which may lead to revocation of his term of probation?

Defendant unsuccessfully raised both of these questions at a hearing for the revocation of his term of probation before the trial court. He then appealed from the order revoking his probation.

After pleading guilty to assault with intent to rob (N.J.S.A. 2A:90-2) on April 28, 1976, defendant was given a suspended indeterminate sentence to the Youth Correction Institution Complex. He was placed on probation for three years "with drug dependency rules" to apply, and was required to satisfactorily complete a residential drug-treatment program.

On June 24, 1977 defendant was charged with violating the terms and conditions of his probation because of (1) his use (and being under the influence) of heroin; (2) his use (and being under the influence) of tetrahydrocannabinols (THC) ³, and (3) his refusal to cooperate with and participate in a drug-treatment program.

On July 1, 1977 a hearing on the alleged probation violation was conducted. Defendant was found to be in violation of the first two charges. The judge sentenced him to an indeterminate term at the Youth Correction Institution Complex. Upon defendant's immediate application the sentence was amended to provide that he be placed in an in-patient drug treatment center. The evidence that defendant violated probation was based solely on the testimony of his supervising probation officer, Michael Kranayk.

On May 19, 1977 urine specimens submitted by defendant indicated the use of methadone. On May 31, 1977 defendant reported to Kranayk. Kranayk questioned him with regard to current narcotics abuse. Defendant initially denied using narcotics. Upon further questioning he admitted to having used heroin during the months of February, March and April 1977. He also admitted having "abused" THC on May 14, 1977. Two other probation officers were in the office at that time. Kranayk then discussed with defendant a treatment plan for his narcotics abuse. Defendant said he was not interested in a residential drug treatment program. Kranayk told defendant that, if he would not enter an inpatient program as arranged by Kranayk, then defendant would be taken into custody and charged with violation of probation. The charge of probation violation followed.

We consider the first question as to lack of corroboration. Defendant submits that State v. Lucas, 30 N.J. 37, 51, 152 A.2d 50 (1959), supports his contention that his uncorroborated admission to his probation officer was an insufficient foundation upon which to base his probation violation. In Lucas defendant was convicted of murder in the first degree by reason of his feloniously setting on fire a building, causing the death of three occupants. He contended that the trial judge erred in refusing to direct a verdict of acquittal because of insufficient corroboration of his confession. Although defendant was unsuccessful in this argument because the State, in the view of the Supreme Court, had introduced sufficient proof independent of the confession to strengthen or bolster the confession "tend(ing) to generate a belief in its trustworthiness, plus independent proof of loss or injury" (30 N.J. at 56, 152 A.2d at 60), nevertheless the court noted that:

It is a widely accepted doctrine reflected in either American decisional or statutory law that an uncorroborated extra-judicial confession cannot provide the evidential basis to sustain a conviction for crime. (at 51, 152 A.2d at 57, citations omitted)

The difficulty with the instant defendant's argument on this point is that here we are not concerned with a prosecution of him for the crime of which he was convicted. We are reviewing only a proceeding which sought to revoke defendant's probation to which he was sentenced upon his conviction. Defendant's brief refers to his "conviction" for violating the terms of his probation. But although the use of the word "conviction" might seemingly permit defendant to rely on the holding of Lucas, his argument is not a valid one. He has not been "convicted" of violating probation, and the revocation of probation proceedings were neither a criminal prosecution nor tantamount to a criminal prosecution. ⁴

The statute providing for revocation of probation, N.J.S.A. 2A:168-4, in part provides:

At any time during the probation period the court may issue a warrant and cause the probationer to be arrested for violating any of the conditions of his probation, or any probation officer, police officer, or other officer with power of arrest, upon the request of the chief probation officer, may arrest the probationer without a warrant; and a commitment by such probation officer setting forth that the probationer has, in his judgment, violated the conditions of his probation shall be sufficient warrant for the detention of such probationer in the county jail, house of detention or local prison, when designated in the commitment, until he can be brought before the court. Such probation officer shall forthwith report such arrest or detention to the court and submit to the court a report showing the manner in which the probationer has violated his probation. Thereupon the court, after summary hearing, may continue or revoke the probation and the suspension of sentence, and may cause the sentence imposed to be executed or impose any sentence which might originally have been imposed. * * * (Emphasis supplied.)

Probation is not a sentence in itself, but rather is a device that, among other things, designates a period during which the imposition or the execution of sentence is suspended and the convicted person is permitted to continue at large upon stated conditions, upon the violation of which he makes himself liable to imprisonment. Adamo v. McCorkle, 26 N.J.Super. 562, 98 A.2d 597 (App.Div.1953), rev'd on other grounds, 13 N.J. 561, 100 A.2d 674 (1953), cert. den. 347 U.S. 928, 74 S.Ct. 531, 98 L.Ed. 1080 (1954).

The object of a summary revocation hearing, as indicated by the above statute, is simply to determine whether a probationer has violated "any of the conditions of his probation" and, if so, what punishment shall be imposed therefor. As stated in State v. Moretti, 50 N.J.Super. 223, 141 A.2d 810 (App.Div.1958):

The evidence at a hearing for revocation of suspension of sentence or probation does not have the same objective as that taken at a criminal trial, its purpose being to satisfy the conscience of the court as to whether the conditions of the suspended sentence have been violated. Brill v. State, 159 Fla. 682, 32 So.2d 607 (Sup.Ct.1947). (at 237, 141 A.2d at 818)

See also, State v. Zachowski, 53 N.J.Super. 431, 437-441, 147 A.2d 584 (App.Div.1959).

It is eminently clear that "revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations." Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). ⁵ Nor does the full panoply of rights due a defendant apply to probation revocation proceedings. Although a probation revocation may result in a defendant's loss of liberty, it "is not a stage of a criminal prosecution, * * *." Gagnon v....