State v. Moretti

• Decision Date: 19 May 1958
• Docket Number: No. A--65,A--65
• Parties: The STATE of New Jersey, Plaintiff-Respondent, v. Gennaro MORETTI, Defendant-Appellant. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 223

50 N.J.Super. 223

141 A.2d 810

The STATE of New Jersey, Plaintiff-Respondent, v. Gennaro MORETTI, Defendant-Appellant.

No. A--65.

Superior Court of New Jersey.

Appellate Division.

Argued April 21, 1958.

Decided May 19, 1958.

Thomas S. O'Brien, Asst. Prosecutor, Ridgewood, argued the cause for plaintiff-respondent (William C. Brudnick, Sp. Asst. Prosecutor, River Edge, on the brief; Guy W. Calissi, Bergen County Prosecutor, Hackensack, attorney and of counsel).

Eugene L. Dinallo, Passaic, argued the cause for defendant-appellant (Heller & Laiks, Passaic, attorneys).

Before Judges PRICE, HANEMAN and SCHETTINO.

The opinion of the court was delivered by

SCHETTINO, J.A.D.

Appeal is from an order of the trial court dated September 25, 1957 whereby the court held that defendant violated his probation, that the probation be revoked and that defendant serve his previously imposed sentence of a minimum of one year and a maximum of three years in State Prison.

The record indicates that defendant had graduated from a New York City college and had attended a law school in New York City for approximately a year and one-half. On April 13, 1956 defendant was convicted of atrocious assault and battery, was sentenced to a term of not less than one year nor more than three years in State Prison, and was fined $500. His sentence was suspended. Defendant was placed on probation conditioned upon his continuation of psychiatric treatment at his own expense and upon his continuing to work at gainful employment.

From the date of sentencing, defendant held a succession of jobs, none of which lasted for more than six months duration. The last time that the defendant had a job was in June 1957. Thereafter defendant continued to look for employment but was unsuccessful in securing any. His mental condition seemed to have grown progressively worse during this time until in September 1957, when, upon the advice of his psychiatrist, he was committed by his family to Bergen Pines Hospital to undergo insulin and electric shock treatment. At this time his condition was diagnosed as a schizophrenic reaction, paranoid type.

Before treatment could begin, defendant, on September 25, 1957, was charged by the chief probation officer with a violation of his probation in that (a) he failed to obtain and continue at gainful employment, (b) his mental condition made control and supervision of his probation impossible, and (c) police action was required to take defendant into custody. On that day defendant by direction of the trial judge was brought before the County Court for a hearing. The record is silent as to whether any notice of this hearing was ever served on defendant. It appears that defendant was confined in the hospital and that a police officer took him into custody and brought him before the county judge. At oral argument we were informed that his family's counsel happened to be in the courthouse the day of the hearing and counsel was therefore present at the hearing.

Dr. Lederer, a psychiatrist employed by the Bergen Pines Hospital, defendant's probation officer and defendant's mother testified. The job history of defendant was outlined, his difficulty in holding a job was stressed, although it was conceded that he had made efforts to secure employment and for a substantial part of the time had been employed. The probation officer testified that defendant had not observed the court's order to receive continuous psychiatric treatment, although this charge did not hold as to the whole period. However, the probation officer did also testify that defendant reported regularly to his probation officer, that 'I would say that (defendant) made a bona fide effort to be employed during the time that he was under my supervision' and, when he was asked specifically whether he would say that defendant willfully violated the rules of probation, he stated: 'No, I will not.' Defendant's mother testified that defendant was at home most of the time after he was out of work and she was advised by her son's psychiatrist to have him taken to the Bergen Pines Hospital for medical treatment.

On the strength of the testimony the court revoked the probation order and imposed the original sentence. The trial court stated in its oral judgment that defendant had violated the rules of probation in failing to obtain and continue in gainful employment, that defendant had a schizophrenic paranoid condition and therefore should be hospitalized, and directed defendant to serve his sentence in State Prison with a recommendation to the warden that his confinement be in the State Hospital so that he could undergo the psychiatric treatment which was then deemed necessary. The court also stated that defendant's violation of the provision that defendant should remain employed was not willful but rather was the result of his mental condition. Defendant was taken to the State Prison.

Defendant appealed the revocation of probation and applied to the trial court for bail pending the appeal. The application was denied on October 16, 1957. He then applied to this court for release from prison confinement. The application was granted by order dated October 23, 1957, conditioned upon defendant remaining at the New Jersey State Hospital until the disposition of the appeal. Further application to this court was made for release of the defendant pending the prosecution of the appeal, and on December 9, 1957 this court issued an order remanding the matter to the trial court for rehearing on defendant's application for bail and for the taking of additional testimony.

In conformity with the order to remand, a summary hearing De novo was held on Friday, December 13, 1957, at the conclusion of which the trial court reaffirmed its original decision, finding a violation of probation and expressing a lack of confidence in the unanimous medical opinions and conclusions that defendant was not, at that time, psychotic. The trial court likewise denied (a) the application for bail, and (b) an application to permit defendant to return to the State Hospital, retaining the status set forth in our order of October 23, 1957 pending defendant's applying to the Appellate Division on the following Monday, December 16, 1957. The trial court remanded defendant to State Prison immediately.

This court, by order dated December 16, 1957, provided that the Sheriff of Bergen County release the defendant from custody on his own recognizance pending the further order of the court; that defendant, upon his release, report for psychiatric treatment to Dr. Lederer once a week until the final determination of this case, and that defendant have leave to report to any other private doctor for consultation or treatment as he might determine. This order further specified that the record of the prior hearing be supplemented by the testimony taken before the trial court on December 13.

This is a probation case, not a parole case. We emphasize that our views are limited in their application to the subject matter of probation. See, for example, a discussion distinguishing the status of a parolee from that of a probationer in McCoy v. Harris, 108 Utah 407, 160 P.2d 721 (Sup.Ct.1945); Ex parte Anderson, 191 Or. 409, 229 P.2d 633, 639, 230 P.2d 770, 29 A.L.R.2d 1051 (Sup.Ct.1951), and State v. Theisen, 167 Ohio St. 119, 146 N.E.2d 865 (Sup.Ct.1957).

In Probation and Social Adjustment (1952) by Jay Rumney and Joseph P. Murphy, published by Rutgers University Press for the Essex County Probation Office, we find the following (at page 6):

'Probation is the status of a person convicted of a crime or adjudged guilty of delinquency during a period of suspension of sentence or corrective treatment in which he is given liberty conditional on his good behavior and in which the state through its agents by personal supervision attempts to assist him during good behavior.'

In 'Latter-Day Procedures in the Sentencing and Treatment of Offenders in the Federal Courts,' by Henry P. Chandler, Director, Administrative Office of the United States Courts--16 Federal Probation 3, 8 (March 1952), reprinted, with permission, from Virginia Law Review (October 1951), we note:

'The Nature and Advantages of Probation

'Probation may be defined as the treatment of an offender by personal guidance and assistance without custody. The theory is that in the offender there is a core of sound impulse which by an understanding person can be brought out and made effective. Probation is really the application of wise and compassionate friendship. It is astonishing how much, with good judgment, faith, and perseverance, it can accomplish.

'A probationer * * * exists in a normal social environment as a member of a family or community. By supervision he is assisted to make the necessary adjustment of his conduct in the situation under which he will continue to live. Supervision during probation, which may be close at the beginning, is gradually relaxed as the probationer demonstrates ability to control himself, and the removal of it at the end may be almost imperceptible. The probationer has learned under the conditions of life to go under his own control.'

Chief Justice Hughes, in Burns v. United States, 287 U.S. 216, 220, 53 S.Ct. 154, 155, 77 L.Ed. 266, 268 (1932), stated that a probation act

'* * * was designed to provide a period of grace in order to aid the rehabilitation of a penitent offender; to take advantage of an opportunity for reformation which actual service of the suspended sentence might make less probable.'

Probation differs from imprisonment in that it 'seeks to accomplish the rehabilitation of persons convicted of crime by returning them to society during a period of supervision rather than sending them into the unnatural and, all too often, socially unhealthful atmosphere of prisons and reformatories.' United States Attorney General's Survey of Release Procedures, Vol. II, Probation (Washington Government Printing...