State v. Reyes

• Decision Date: 22 January 1986
• Citation: 504 A.2d 43,207 N.J.Super. 126
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Raymond REYES, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 126

207 N.J.Super. 126

504 A.2d 43

STATE of New Jersey, Plaintiff-Respondent, v. Raymond REYES, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued Dec. 9, 1985.

Decided Jan. 22, 1986.

Patricia A. Kern, Asst. Deputy Public Defender, for defendant-appellant (Thomas S. Smith, Acting Public Defender, attorney; Patricia A. Kern of counsel and on the brief).

Gilbert G. Miller, Deputy Atty. Gen., for plaintiff-respondent (Irwin I. Kimmelman, Atty. Gen. attorney; Gilbert G. Miller, of counsel and on the letter brief).

Before Judges FURMAN, COHEN and ASHBEY.

The opinion of the court was delivered by

COHEN, J.A.D.

After pleading guilty to a number of charges, defendant was sentenced to a probationary term with the condition that he successfully complete an eighteen-month residential drug program. He entered the program but was discharged after four months. The probation department sent him notice to report to his probation officer, but he did not appear. He was then charged with violating his probation for failure to complete the drug program and for failing to report. After a hearing, Judge Hoffman determined that the violations had taken place, concluded that defendant's probation should be revoked, and imposed a term of incarceration. Defendant appealed.

Before us, defendant makes three arguments. The first is that the State's evidence was inadmissible hearsay and insufficient to support the court's findings. The second is that the reason for his discharge from the drug program was an alleged violation of a rule prohibiting sexual contact between program participants. Such a rule, defendant argues, restricts constitutionally protected conduct and, further, is not reasonably related to the rehabilitative purposes of N.J.S.A. 2C:45-1. Third, defendant argues that he is entitled to credit against his term of imprisonment for the time he spent in the drug program before discharge. We agree with Judge Hoffman's rejection of defendant's contentions and therefore affirm.

The evidence was the testimony of Senior Probation Officer Gloria Brennan. She was not defendant's probation officer, who was on sick leave at the time of the hearing. She testified from probation department records that two letters were sent to defendant instructing him to report on a certain date. One went to an address supplied by defendant, was not delivered, and was returned with the notation, "addressee unknown." The other was received at defendant's parents' home. Defendant did not report at the time he was told to do so. He did, however, come into the probation office some fifteen days later for an unscheduled visit.

Ms. Brennan also testified that she had no first-hand knowledge of the problem at the drug program. She said that Paul Rivera, a program counselor, had advised in writing and by telephone that defendant was guilty of repeated "intolerable" behavior and was ultimately discharged for violating a program rule prohibiting sexual contact between program participants. Rivera said that a program participant told him she was present on two occasions when her roommate had sexual contact with defendant. Rivera further said that defendant was aware of the prohibition, having passed a required test of knowledge of the program's rules.

The State offered no evidence beyond Ms. Brennan's testimony. Defendant offered no evidence at all.

Revocation of probation is not a stage in a criminal prosecution, but, rather, a part of the corrections process. However, the loss of liberty potentially involved is a serious deprivation which requires that the probationer be accorded due process of law. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). As in parole revocation proceedings, there are fundamental but qualified rights to receive notice and disclosure of the basis for the charges, to be heard and present evidence, to confront and cross-examine adverse witnesses (unless the hearer reasonably finds good cause for not allowing confrontation), to have a neutral and detached hearing body and an explanation of the decision. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). New Jersey's statute embodies these rights and adds a further one of representation by counsel. N.J.S.A. 2C:45-4. Federal probationers receive the same benefit. 18 U.S.C.A. § 3006A(b). The United States Constitution does not require counsel in all cases. Gagnon, 411 U.S. at 787-790, 93 S.Ct. at 1762-1763, 36 L.Ed.2d at 664-666.

A violation-of-probation hearing is summary in nature. State v. Serio, 168 N.J.Super. 394, 399, 403 A.2d 49 (Law Div.1979). That was plainly expressed in the repealed N.J.S.A. 2A:168-4 and is implicit in the current N.J.S.A. 2C:45-3a(4). In both Gagnon (involving probation), and Morrissey (involving parole), the Supreme Court stressed the informal and flexible nature of revocation hearings and the lack of need or justification for the range of protections available to defendants in criminal trials. In Morrissey, the court said, 408 U.S. at 489, 92 S.Ct. at 2604, 33 L.Ed.2d at 499; ... the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.

New Jersey has not imposed stricter state constitutional standards on probation violation hearings than the United States Constitution demands. See State v. Generoso, 156 N.J.Super. 540, 546, 384 A.2d 189 (App.Div.1978); State v. Johnson, 133 N.J.Super. 457, 337 A2d 387 (App.Div.1975); State v. Zachowski, 53 N.J.Super. 431, 440 , 147 A2d 584 (App.Div.1959).

In probation violation hearings, the court has two separate functions, fact-finding and disposition. The first issue a court must decide is whether a violation of probation occurred. See Douglas v. Buder, 412 U.S. 430, 93 S.Ct. 2199, 37 L.Ed.2d 52 (1973). The second is what to do about a violation that it finds took place. ¹ If the charged violation is a conviction of defendant for another offense, the proofs will normally be brief indeed. ² If the charged violation is itself non-criminal, then the court must determine if it is

satisfied that the defendant has inexcusably failed to comply with a substantial requirement imposed as a condition [of probation]. [ N.J.S.A 2C:45-3a(4) ].

By what standard is a court to be "satisfied" that a violation occurred? Proof of violation beyond a reasonable doubt is not constitutionally required as it is in criminal trials. Schneider v. Housewright, 668 F.2d 366, 368 (8 Cir.1981); State v. Maier, 423 A.2d 235 (Me.1980). New Jersey's cases seem, however, to express a burden-of-proof standard of questionable constitutional validity. The standard first appeared in State v. Moretti, 50 N.J.Super. 223, 237, 141 A.2d 810 (App.Div.1958), where the court said:

It is only necessary that the judge shall have reason to believe them [the charges] to be true....

The standard was essentially repeated in State v. Wasserman, 75 N.J.Super. 480, 485, 183 A.2d 467 (App.Div.1962) aff'd o.b. 39 N.J. 516, 189 A.2d 218 (1963):

... the trial judge was only required to have had reasons to believe the violation charges were true in order to justify the revocation.

It appeared again in State v. Serio, 168 N.J.Super. 394, 399, n. 1, 403 A.2d 49, (Law Div.1979), and in State v. Garcia, 193 N.J.Super. 334, 338, 474 A.2d 20 (App.Div.1984).

None of the courts expressing this verbal formula actually ruled that a court which was not satisfied of a violation by a preponderance of the evidence could nevertheless revoke probation. ³ The formula, however does not reject that possibility. It may well be that a "reason to believe" standard would not satisfy the requirements of due process in violation proceedings. 3 LaFave and Israel, Criminal Procedure, Sec. 25.4(c), p. 162 (1984). See State v. Maier, 423 A.2d 235, 239 (Me.1980). It certainly runs against the grain of the language of N.J.S.A. 2C:45-3a(4), which requires a court to be "satisfied that the defendant has ... failed to comply." Some jurisdictions require proof by clear and convincing evidence or the like. See, e.g., Sigman v. Whyte, 165 W.Va. 356, 268 S.E.2d 603 (1980). The majority, do not, however, see, e.g., State v. Rasler, 216 Kan. 192, 532 P.2d 1077 (1975), and we believe it unnecessary to do so for the fair protection of a probationer's constitutional rights. We hold, therefore, that a court may not find a violation of probation unless defendant has been convicted of another offense or the court is satisfied by a preponderance of the evidence that defendant has inexcusably failed to comply with a substantial requirement imposed as a condition of probation.

The court's disposition function is predictive and discretionary. Morrissey, 408 U.S. at 483-485, 92 S.Ct. at 2601-2602, 33 L.Ed.2d at 495-497. The court can impose

... any sentence that might have been imposed originally.... [ N.J.S.A. 2C:45-3b]

or continue probation under the same or new conditions. ⁴ N.J.S.A. 2C:45-3b; 2C:45-4. The only substantial difference from original sentencing is the added information made available to the court by defendant's subsequent conduct. The State may show aggravating circumstances, Anaya v. State, 96 Nev. 119, 606 P.2d 156, 159 (1980), and the probationer may show mitigating circumstances. United States v. Ferguson, 624 F.2d 81, 83 (9 Cir.1980). Compare N.J.S.A. 2C:44-1. It is the court's sound judgment that is invoked, and the exercise of that judgment will not be reversed on appeal unless it was mistakenly exercised. State v. Johnson, 133 N.J.Super. 457, 461, 337 A.2d 387 (App.Div.1975). See State v. Nakamura, 59 Haw. 378, 581 P.2d 759 (1978).

The sentencing principles of State v. Roth, 95 N.J. 334, 363-364, 471 A.2d 370 (1984), apply, mutatis mutandis, to the disposition of a probation violation. The exercise of the court's judgment (1) must be based on findings of fact grounded in competent,...