617 A.2d 1245 | N.J. Super. Ct. App. Div. | 1992
The opinion of the court was delivered by
The State appeals from the Law Division’s dismissal of a Somerset County indictment which charged defendant with one count of third-degree escape (N.J.S.A. 2C:29-5a).
Defendant had been sentenced to State Prison on June 8, 1990, to serve a term of five years, with a twenty-month term of parole ineligibility as mandated by N.J.S.A. 2C:35-7, there being no agreement from the prosecutor to permit a lesser mandatory term of parole ineligibility. Thereafter, defendant’s original sentence was amended to four years of confinement with sixteen months of parole ineligibility.
Defendant was given an electronic wristlet to wear, the purpose of which was to monitor whether he was at his home during the times when he was required to be there as he was not allowed to leave without permission. He was given curfews sufficient to permit him to go to work and then return home immediately. Participants in the program are further advised and must sign an agreement that any attempt to remove a monitoring device “may be considered an attempt to escape.”
N.J.S.A. 2C:29-5a, Escape, provides:
A person commits an offense if he without lawful authority removes himself from official detention or fails to return to official detention following temporary leave granted for a specific purpose or limited period. “Official detention” means arrest, detention in any facility for custody of persons under charge or conviction of a crime or offense, or committed pursuant to chapter 4 of this Title, or alleged or found to be delinquent, detention for extradition or deportation, or any other detention for law enforcement purposes; but “official detention” does not include supervision of probation or parole, or constraint incidental to release on bail.
In State v. Clay, supra, we concluded that a participant in ISP who fails to abide by the rules and leaves New Jersey is not guilty of the crime of escape under the above statute. ISP was adopted by amendment to R. 3:21-10(e). Under that rule, ISP participants required a change of their custodial sentence for entry into the program. This change was “addressed entirely to the sound discretion of the three-judge panel assigned to hear them.” The three-judge panel also was vested with “the authority to resentence offenders ... in the event they fail to perform satisfactorily following entry into the program.” R. 3:21-10(e).
Subsequent to our decision in Clay and its affirmance by the Supreme Court, the Legislature, perhaps not satisfied with the lesser consequences of absconding from ISP, amended N.J.S.A. 2C:29-5 by adding subsection b, entitled “Absconding from parole.” The Legislature declared that if a person subject to parole “goes into hiding or leaves the State with a purpose of avoiding supervision,” the parolee commits a crime of the third degree. N.J.S.A. 2C:29-5b. It further provided that “parole” includes participation in ISP. The Legislature made no specific reference to HCP, nor did it amend the language of subsection a pertaining to escape to in any way alter the classification of “official detention.” It is clear that the Legislature in amending N.J.S.A. 2C:29-5 intended that there be two classifications of absconding persons subject to prosecution, i.e., under subsection a, those persons subject to official detention who without lawful authority remove themselves and, under subsection b,
We conclude that, depending on their status and classification, participants in HCP may fall into either category. Under HCP, pre-parole inmates are eligible for participation though not eligible for parole, whether or not serving a mandatory term, but “[u]pon achieving his/her parole date, the inmate shall be issued a Parole Certificate and given a parole class” after which the “now parolee” is discharged from the inmate program and is subject to established policies and procedures of parole. Further parolees, both juvenile and adult, may also be admitted to or retained in the program where it appears that use of the strictures of the program will reduce the likelihood that the parolee will commit a crime, or even in special circumstances where it is appropriate to impose HCP in lieu of revocation of parole.
We are fully satisfied that, under the HCP as administered by the Department of Corrections during defendant’s participation, prior to parole an individual sentenced to a custodial term and participating in the program remains an inmate and until granted parole status, remains subject to the “official detention” of the Department of Corrections. N.J.S.A. 2C:29-5a. Pre-parole HCP participants are in fact inmates. They are referred to as such throughout the policy manual of the program. They must be electronically monitored and confined to an approved residence, unless constructively engaged in activity approved by their supervising officer. While a participant is unemployed or not in a vocational/educational program, unrestricted activities are not permitted to exceed more than three hours per day and then only to engage in “verifiable, constructive activities.” The program is structured in such a manner as to be consistent with the intent of the Department of Corrections that pre-paroled participants remain inmates and that the inmate remains in “official detention” within the contemplation of N.J.S.A. 2C:29-5a.
The order dismissing the indictment is therefore reversed; the indictment is reinstated, and the matter is remanded to the Law Division for further proceedings.
The indictment refers only to N.J.S.A. 2C:29-5 without a subsection designation. However, it is clear from the language of the indictment and a review of the grand jury transcript that the charge was intended to be under subsection a entitled, Escape, rather than subsection b, Absconding from parole, which became effective February 25, 1991.
This amendment is significant as an inmate may not be referred to the HCP unless he or she is within six months of either an established parole date, an actual parole eligibility date, an expiration of maximum sentence, or an anticipated parole date established by the State Parole Board.