State v. Serio, S-1425-77

• Decision Date: 09 May 1979
• Docket Number: No. S-1425-77,S-1425-77
• Parties: STATE of New Jersey v. Philip V. SERIO, Defendant.
• Court: New Jersey Superior Court

Page 394

168 N.J.Super. 394

403 A.2d 49

STATE of New Jersey v. Philip V. SERIO, Defendant.

Indictment No. S-1425-77.

Superior Court of New Jersey, Law Division.

May 9, 1979.

Seymour Goldstaub, Fort Lee, for defendant.

Brian J. Neary, Asst. Prosecutor, for the State (Roger W. Breslin, Prosecutor of Bergen County, attorney).

SCHIAFFO, J. S. C.

Defendant Philip V. Serio is before this court on a charge of violating the terms and conditions of probation. He had been placed on probation on September 22, 1978 when he was sentenced to 364 days in the Bergen County Jail for an attempted break and entry to which he had previously pleaded guilty.

During his period of probation defendant was indicted for breaking and entering; arrested on a charge of theft of an automobile (December 12, 1978) and arrested on charges of possession of a controlled dangerous substance (February 10, 1979). Defendant has been unable to post bail and is presently in the Bergen County Jail awaiting disposition of these new charges.

On the basis of the above indictment and arrests the Chief Probation Officer of Bergen County charged defendant with violation of probation. There are no charges by the probation officer that the probationer failed to comply with any other terms and conditions of probation.

The precise question before this court is whether an individual on probation can have his probation revoked because he has been indicted or arrested during the period of probation. This is not a situation where a probationer has been convicted of a crime or pleaded guilty to a crime while on probation. In that circumstance the violation of probation is conclusively presumed. State v. Zachowski, 53 N.J.Super. 431, 147 A.2d 584 (App.Div. 1959). Nor is this a situation where an individual is charged with a crime and acquitted before revocation. See 76 A.L.R.3d 564, 568.

Violations of probation are presently governed by N.J.S.A. 2A:168-4. The relevant portion of that statute provides that a chief probation officer may request that a probationer be arrested for violating any of the conditions of his probation. The statute also requires:

* * * 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 * * * 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 violated his probation.

This portion of the statutory requirements has been complied with fully in this matter. The probation officer sets forth as his reasons the subsequent indictment and arrests.

Pursuant to N.J.S.A. 2A:168-4 the court is required to hold a "summary hearing," after which the court

* * * 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.

Before the court holds that "summary hearing" it must determine if the charges do, in fact, arise to the level of being probation violations. To determine this it is necessary to first look at the purpose of probation.

When a court places an offender on probation it is doing so because it believes that confinement is not necessary to insure the protection of or to serve the needs of society or defendant. In State v. Pascal, 133 N.J.L. 528, 45 A.2d 179 (Sup.Ct.1946), aff'd 1 N.J. 261, 62 A.2d 882 (1949), the court recognized that

An offender is placed on probation because a court considers that he may be reformed and is persuaded that probation in the particular case is not inimical to the well-being of society generally. The very term 'probation' connotes to the average mind an experiment or proving period; that the convicted person escapes the more severe penalty of imprisonment on condition of future Good behavior, especially during the probation term; And surely good behavior necessarily excludes a return to previous habits, conduct and the like which brought the probationer into a trial court to stand trial. Any normal person is chargeable with such knowledge. (at 531, 45 A.2d at 181; emphasis supplied; citations omitted)

It is this return to the previous conduct that brought the probationer before the court in the first place that is of concern here. The subsequent arrests and indictment of Philip V. Serio bring forth the question of whether probation was appropriate in the first place. However, it must be determined if the arrests and indictment are sufficient enough to find that the probationer did violate his probation.

By being placed on probation upon a suspended sentence the probationer is granted the privilege of not being incarcerated. Several New Jersey cases have held that if the probationer "fails to meet the test or chance of freedom by Good behavior during his probationary period," the trial court is free to commit the probationer to prison. In re White, 18 N.J. 449, 455, 114 A.2d 261 (1955); see State v. McCain, 150 N.J.Super. 497, 499, 376 A.2d 185 (App.Div.1977).

Under the present New Jersey statute and case law "good behavior" has not been clearly defined. It is not clear whether "good behavior" means free from any criminal conviction, or free from any arrests, charges and indictments. The cases in New Jersey that have addressed the issue appear to conclude that being arrested or indicted on charges similar to the one for which he received the probation he is charged with violating, may evidence lack of good behavior. State v. Pascal, supra ; State v. Wasserman, 75 N.J.Super. 480, 183 A.2d 467 (App.Div.1962) aff'd 39 N.J. 516, 189 A.2d 218 (1963); see 58 A.L.R.3d 1156, 1162.

The correct issue in determining the absence of good behavior under present New Jersey law is not merely that a probationer was Charged with a crime, or that he was, in fact, Convicted but that the court believes that the probationer Committed a crime. See State v. Wasserman, supra ; accord, United States v. Webster, 161 U.S.App.D.C. 1, 4 492 F.2d 1048, 1051 (1974). The subsequent arrest and/or indictment and their surrounding circumstances as brought forth at the hearing must convince the court that probation has not succeeded in the case of the probationer then before the court. ¹ See, In re White, supra 18 N.J. at 455, 114 A.2d 261; See, State v. Zachowski, supra 53 N.J.Super. at 440, 147 A.2d 584.

The determination of whether probation should be revoked may only be made after the full summary hearing that is called for by N.J.S.A. 2A:168-4. State v. Wasserman and State v. Zachowski, both Supra. The court is mindful that the basic form of procedure required for such a hearing would be notice and the opportunity to rebut the charge. State v. Zachowski. The minimum safeguards required as a matter of due process would also be in effect. They are set forth in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973):

* * * "(a) written notice of the claimed violations of (probation or) parole; (b) disclosure to the (probationer or) parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a 'neutral and detached' hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking (probation or) parole." (at 786, 93 S.Ct. at 1761-1762 quoting from Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972))

See also, State v. Johnson, 133 N.J.Super. 457, 337 A.2d 387 (App.Div.1975), recognizing that Gagnon must be followed in this State.

The New Jersey Code of Criminal Justice, Title 2C, which goes into effect September 1, 1979, clarifies the issue of whether a conviction or belief by the court that the probationer committed the crime is necessary to find a violation of probation.

N.J.S.A. 2C:45-3 provides in part that

a. At any time before the discharge of the defendant or the...