State v. BraeunigState v. Braeunig
The issue presented in this proceeding appears to be a novel one in this State. Defendant seeks relief by way of credit on his sentence after conviction for
He instituted these proceedings by filing a “notice of motion to correct sentence pursuant to N.J.S.A. 2A:168-1-4.” Determining that the proceeding was more appropriately one for post-conviction relief, I considered it as if he had filed a petition for post-conviction relief pursuant to
At the hearing it was disclosed that there is substantially no dispute as to the salient facts.
In July 1971 defendant Braeunig was convicted after a jury trial of conspiracy to violate the gambling laws and also of substantive gambling offenses. In August 1971 he was sentenced in the aggregate to two to three years at State Prison, Trenton, a fine of $1,000, costs and one year‘s probation following his release from custody.
Upon announcing his intention to appeal, he remained at liberty by complying with an order for increased bail. Appeal to the Appellate Division ensued.
None of the persons who participated in bringing about what appears in the following excerpt from the presentence report prepared for resentencing of defendant, which took place July 3, 1973, has any personal recollection of the events described therein. Nor is there any doubt as to the authenticity of the excerpt, which reads as follows:
On September 14, 1971, the Honorable Herbert Horn directed the subject, through his counsel and the probation office, that the defendant was instructed to report for his probation term and to pay his total fine of $1,000., and $650. costs during the period of that probation and during the time the appeal was being processed.
The defendant started reporting to the Probation Office as directed and on August 27, 1972, his probation was extended for one year to enable him to complete the payment on his fines and costs totalling $1650.00. On August 27, 1973 subject‘s probation was terminated with improvement.
The Appellate Division remanded the matter for several purposes, including resentencing, to eliminate certain doubts
Following the remand substantially the same sentence was imposed, i.e., incarceration at State Prison for a minimum term of two years and a maximum term of three years, a fine of $1,000 and probation for one year following his release from custody. Imposition of costs was eliminated. Another appeal resulted in affirmance by the Appellate Division in an unreported opinion released August 1, 1974, and denial of certification by the New Jersey Supreme Court. State v. Braeunig, 66 N.J. 325 (1974).
Since apparently, according to the above-quoted portion of the presentence report, defendant conformed to an order for probation for 23 months, representing substantially the interval between the initial imposition of sentence and the date of resentence, defendant contends, first, that he is entitled to an order relieving him from the probationary term of 12 months to follow release from incarceration, which was part of the initial sentence and resentence; second, he is entitled to credit on the custodial portion of his sentence equivalent to th 11-months’ probation to which he was subjected beyond the initial 12 months.
I disagree and accordingly deny his application. Not having actual recollection, I can only surmise the reason for the directive to the probation department. When sentence was imposed initially, defendant‘s activities disclosed at the trial were then fresh in mind. These activities were sufficient to impel a conviction by a jury that defendant was the dominating figure in a bookmaking conspiracy. He had set up the scheme and recruited his aides, consisting of his codefendants, who were indicted and convicted with him. His telephone conversations reproduced at the trial clearly indicated that in his mind he had little regard for the law or its enforcement. This probably led me to believe that some type of supervision over him should be exercised in order to prevent his engaging in illegal activity pending appeal.
Probation is commonly believed to be regulated and authorized by our statute,
Post-conviction probation is said to differ from imprisonment in that it seeks to achieve 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. State v. Moretti, 50 N.J. Super. 223 (App. Div. 1958).
Post-conviction probation preceded the above-mentioned statutory enactment as a matter of common law. Adamo v. McCorkle, 13 N.J. 561 (1953), and authorities cited therein. Our first statute relating to probation, and the statutory precursor of
American Bar Ass‘n, Standards Relating to Pretrial Release (1968), recommends the same type of restrictions and includes the placing of an accused under the supervision of a probation officer or other public official. § 5.2(b)(ii). See also
It is certainly a reasonable conclusion that, if to insure the appearance of an accused before trial, the court may place him under probationary supervision without subsequent credit on the sentence, it has such authority after conviction pending appeal without credit.
Commonly, in this and other jurisdictions, courts suspend custodial sentences and place defendants on probation for a definite term. For violation of the terms of their probation they may be resentenced to custodial punishment. But they are not entitled to credit on any subsequent sentence for the earlier terms of probation. State v. Fisher, 115 N.J. Super. 373 (App. Div. 1971). The same is true in parole cases. State v. Allison, 81 N.J. Super. 390 (App. Div. 1963).
The fact that it is legal and is common practice, as illustrated by such cases as State v. Fisher, supra; State v. Pascal, 133 N.J.L. 528 (Sup. Ct. 1946); Id. 1 N.J. 261 (1949), to impose the same or even greater custodial sentence than that which was suspended without any credit for probationary
As stated by the Appellate Division in Adamo v. McCorkle, supra, 26 N.J. Super. 562 (App. Div. 1953), rev. on other grounds 13 N.J. 561 (1953), probation is not a sentence in itself, but rather is a device that, among other things, designates a period during which the imposition of the execution of the 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.
Torres v. Wagner, 121 N.J. Super. 457 (App. Div. 1972), held that a statute (
What was said in State v. Lee, 60 N.J. 53, 58 (1972), is pertinent. In that case the court held that, pursuant to
As with parole, probation may likewise be considered as an act of favor on the part of the State, not a matter of right on the part of the prisoner. State ex rel. Kincaid v. State Parole Board, 53 N.J. Super. 526 (App. Div. 1959).
Pretrial probation may be said to be due to some demand of the law other than that based on a criminal conviction. It is a necessary part of the process in the criminal procedures system, as much for the benefit of a defendant as for the facility of the system. It need not be considered as part of the punishment which the law exacts. State v. Kennedy, 106 Ariz. 190, 192, 472 P.2d 59, 61 (Sup. Ct. 1970).
Our own cases and other authorities as already referred to hereinabove indicate that although probation may be considered as painful and burdensome — as part of a condition for withholding the execution of the sentence pending appeal — a defendant is not entitled to any credit on either the subsequent term of incarceration or probation. It is more appropriately a “demand of the law other than that based upon his conviction.” State v. Kennedy, supra, 106 Ariz. at 193, 472 P.2d at 61.
In the instant case, realistically, there was a quid pro quo in that Braeunig remained at large and at the same time the court was satisfied with respect to the payment of the fine and costs (viewing the situation as of September 1971) and his eventual appearance when and if his appeal was futile.
For these reasons I deny defendant‘s application.