State v. Maglio

• Decision Date: 04 February 1983
• Citation: 459 A.2d 1209,189 N.J.Super. 257
• Parties: STATE of New Jersey, Plaintiff, v. Douglas MAGLIO, Defendant.
• Court: New Jersey Superior Court

Page 257

189 N.J.Super. 257

459 A.2d 1209

STATE of New Jersey, Plaintiff, v. Douglas MAGLIO, Defendant.

Superior Court of New Jersey, Law Division Morris County.

Feb. 4, 1983.

Michael J. Noonan, Asst. Deputy Public Defender, for defendant.

Frank P. Leanza, Asst. Prosecutor, for the State (Lee S. Trumbull, Prosecutor, Morris County, attorneys).

MacKENZIE, J.S.C.

Defendant, a resident of Florida, pleaded guilty to three counts of theft by deception. N.J.S.A. 2C:20-4 a. In his factual statement he admitted committing these offenses while temporarily visiting relatives in New Jersey. At sentencing defendant expressed a wish to return to Florida should a noncustodial sentence be imposed. A comparison of the criteria ( N.J.S.A. 2C:44-1 a., b.) for imposing or withholding a sentence of imprisonment led this court to the conclusion that the mitigating circumstances outweighed the aggravating factors. Defendant was placed on probation for a term of three years, subject to the standard conditions and to certain special conditions. N.J.S.A. 2C:45-1. Supervision of defendant was allowed to be transferred to the appropriate probation department in Florida, pursuant to the Uniform Act for Out-of-State Parolee Supervision, N.J.S.A. 2A:168-14 et seq. See, also, Fla.Stat. § 949.07.

One of the special conditions of probation imposed by the court was the requirement that defendant waive in advance his right to an extradition hearing in the event a violation of probation complaint is filed. He consented in court and, shortly thereafter, signed a waiver of extradition form in the presence of his attorney. The authority of the court to impose such a special condition of probation has never been the subject of any judicial opinion in New Jersey.

N.J.S.A. 2C:45-1 authorizes the court to "attach such reasonable conditions, authorized by this section, as it deems necessary to insure that he [the probationer] will lead a law-abiding life, or is likely to assist him to do so." Waiver of the right to an extradition hearing is not an enumerated specific condition of probation which appears in N.J.S.A. 2C:45-1 b. Nevertheless, there is a catch-all provision which permits the court to require one sentenced

(12) To satisfy any other condition reasonably related to the rehabilitation of the defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience; [ N.J.S.A. 2C:45-1b. (12) ]

Similar broad language was contained in the predecessor statute, N.J.S.A. 2A:168-2 ¹. N.J.S.A. 2C:45-1 b. (12) and its predecessor have been construed to permit the imposition of probation conditions not explicitly listed in the statute. See State v. Bausch, 83 N.J. 425, 433, 416 A.2d 833 (1980). State v. Monaco, 166 N.J.Super. 435, 400 A.2d 74 (App.Div.1979) provides one example of the discretionary imposition of a condition of probation not specified in the statute. In Monaco the sentencing judge imposed the special condition that defendant complete an inpatient drug treatment program, and this condition was upheld when challenged on appeal.

N.J.S.A. 2A:168-14 directs the Governor of New Jersey to enter into a compact authorizing signatory states to supervise probationers and parolees permitted to reside outside New Jersey. N.J.S.A. 2A:168-14(3) provides that the supervising states, by signing the compact, waive their right to require that formal extradition procedures be followed when the sentencing state requests return of the probationer. Florida also has enacted this statute. Fla.Stat. § 949.07. In Louisiana v. Aronson, 105 N.J.Super. 410, 252 A.2d 733 (App.Div.), aff'd o.b. 54 N.J. 238, 254 A.2d 786 (1969), the court held that N.J.S.A. 2A:168-14(3) prevented New Jersey from requiring that formal extradition procedures be followed when return of a probationer was requested. The opinion in California v. Crump, 180 N.J.Super. 27, 433 A.2d 791 (App.Div.1981), established that when a sentencing state is a great distance from a supervising state, a probationer can request a hearing to determine if a prima facie case of probation violation has been made out. The hearing will save defendant the inconvenience of returning to California if there is absolutely no merit to the claim that a violation of probation occurred. No mention of the waiver of extradition rights by a defendant appears in the Crump or Aronson opinion.

The waiver provision in N.J.S.A. 2A:168-14(3) applies to relations between states and cannot be construed as implying a waiver of a defendant's rights to have formal extradition procedures followed. Waiver of extradition rights is expressly covered by the Uniform Criminal Extradition Act ( N.J.S.A. 2A:160-1 et seq.) and any waiver of rights under the Uniform Criminal Extradition Act should be explicit, not implicit.

Section 25A of the Uniform Criminal Extradition Act ² authorizes a defendant to waive extradition proceedings:

Any person arrested in this state charged with having committed any crime in another state or alleged to have escaped from confinement, or broken the terms of his bail, probation or parole, may waive the issuance and service of the warrant provided for in sections 2A:160-15 and 2A:160-16 of this title and all other procedure incidental to extradition proceedings, by executing or subscribing in the presence of a judge of any criminal court of record within this state a writing which states that he consents to return to the demanding state. Before such waiver shall be executed or subscribed by such person it shall be the duty of such judge to inform such person of his rights to the issuance and service of a warrant of extradition and to obtain a writ of habeas corpus as provided for in section 2A:160-18 of this title.

If and when such consent has been duly executed it shall forthwith be forwarded to the office of the governor of this state and filed therein. The judge shall direct the officer having such person in custody to deliver forthwith such person to the duly accredited agent or agents of the demanding state, and shall deliver or cause to be delivered to such agent or agents a copy of such consent. Nothing in this section shall be deemed to limit the rights of the accused person to return voluntarily and without formality to the demanding state, nor shall this waiver procedure be deemed to be an exclusive procedure or to limit the powers, rights or duties of the officers of the demanding state or of this state. [ N.J.S.A. 2A:160-30]

In construing this statute a trial court held that a parolee from Pennsylvania who had waived his extradition right as a condition of parole, was not entitled to an extradition hearing in New Jersey. Ex Parte Casemento, 24 N.J.Misc. 345, 49 A.2d 437 (C.P.1945). That waiver was not violative of defendant's constitutional right or statutory rights under the Uniform Act. Basic to that determination was a conclusion that waiver of extradition was not unduly restrictive of defendant's liberty.

Opinions from other jurisdictions support my conclusion that waivers which are executed as a condition of either parole or probation will be enforced by the state in which an absconding defendant is arrested. Ex Parte Johnson, 610 S.W.2d 757 (Tex.Cr.App.1980). The majority rule throughout the country is that formal extradition proceedings are not necessary to compel the return of absconding probationers or parolees who have signed previously a pre-release waiver. Schwartz v. Woodahl, 157 Mont. 479, 487 P.2d 300 (Sup.Ct.1971); White v. Hall, 15 Md.App. 446, 291 A.2d 694 (Ct.Spec.App.1972); State ex rel. Swyston v. Hedman, 288 Minn. 530, 179 N.W.2d 282 (Sup.Ct.1970); Madden v. Simmons, 39 Ala.App. 24, 92 So.2d 922 (Ct.App.1957); Pierce v. Smith, 31 Wash.2d 52, 195 P.2d 112 (Sup.Ct.1948), cert. den. 335 U.S. 834, 69 S.Ct. 24, 93 L.Ed. 387 (1948).

This is so even if the advance waiver of extradition does not conform to the procedures outlined in the waiver section of the Uniform Act. Pierson v. Grant, 527 F.2d 161 (8 Cir.1975). The waiver section construed in the Pierson opinion which is identical to N.J.S.A. 2A:160-30, explicitly states that the statutory procedure is not exclusive. Consequently, so long as the waiver is explained to defendant and his consent is not coerced, the waiver is valid. Requiring the execution of a waiver as a condition precedent of probation will not render the waiver involuntary absent a specific showing of coercion in a particular case. Id. at 164. This should be the New Jersey rule as well.

A few jurisdictions, California for example, will not always enforce an advance waiver agreement. In re Patterson, 64 Cal.2d 357, 49 Cal.Rptr. 801, 411 P.2d 897 (Sup.Ct.1966). In Patterson the California Supreme Court interpreted the waiver section ³ of the Uniform Act, a provision identical to N.J.S.A. 2A:160-30, to require that a waiver be effected...