Criminal Defense Attorney & New Jersey Criminal Justice Information Site

U.S. 2ND CIRCUIT COURT OF APPEALSBRYANT SMITH V MELVIN L. HOLLINS (05/15/06 - No. 03-2250)

Petitioner appeals from the denial of his petition for a writ of habeas corpus by the United States District Court for the Eastern District of New York (Korman, C.J.). The district court found that the state court order excluding Petitioner’s brother and sister during the testimony of two undercover officers, unless they consented to sitting behind a screen—while allowing Petitioner’s mother, common-law wife, and child to remain—did not violate Petitioner’s Sixth Amendment right to a public trial.

Read Smith v. Hollins here

SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION STATE OF NEW JERSEY v FRANCIS S. WALKER (DOCKET NO. A-3632-02T43632-02T4)

Following a jury trial, defendant Francis S. Walker was convicted of third degree possession of a controlled dangerous substance (CDS) (cocaine), contrary to N.J.S.A. 2C:35-10a(1) (Count One); third degree possession of CDS with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (Count Two); and third degree maintaining a fortified premises, contrary to N.J.S.A. 2C:35-4.1c (Count Three). Following merger of Count One into Count Two, defendant was sentenced to consecutive four-year terms of imprisonment on Counts Two and Three. The appropriate fees, fines, penalties, assessments and license revocation were also imposed. On appeal, defendant raises the following arguments:"

SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION STATE OF NEW JERSEY v JOSE HERRERA (Docket No. A2322-040)

Defendant was charged with possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-10a(1) (count one); possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(2) (count two); possession with intent to distribute within 500 feet of a public housing facility, public park, or public building, N.J.S.A. 2C:35-7.1 (count three); and use of a paging device while engaged in the commission of, or an attempt to commit, certain crimes, N.J.S.A. 2C:33-20 (count four). After his motion to suppress the evidence was denied, defendant was convicted on counts one, two and four. On January 29, 2004, we affirmed defendant's conviction for possession of a controlled dangerous substance, but reversed the other convictions and remanded for a new trial on counts two and four. We concluded that admission of hearsay evidence conveyed to, and reported by, the investigating detective to another detective could not be deemed harmless error with respect to those convictions.

Defendant was thereupon retried and convicted of possession of a controlled dangerous substance with intent to distribute (count two), but found not guilty of illegal use of the paging device (count four). He was sentenced to seven years in the custody of the Commissioner of the Department of Corrections for the possession with intent to distribute. The judge also imposed the requisite fines and suspended defendant's driver's license for six months.

On this appeal defendant argues:

SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION STATE OF NEW JERSEY v ALTURIK FRANCIS (Docket No. a6635-04)

This appeal requires us to define the "dominant purpose" test as it applies to pre-indictment proceedings before a grand jury, whether the State conducted itself properly under the test, and what sanctions, if any, should be imposed for its violation. Generally it is appropriate for the State to question witnesses before a grand jury on subjects relevant to the grand jury's investigation which relate to a pending indictment. However it is not proper to use a grand jury for the sole or dominant purpose of preparing a case for the penalty phase of a defendant's capital trial. Such use is violative of the "dominant purpose" test and constitutes a misuse of the grand jury.

The State of New Jersey appeals the Law Division's July 13, 2005 interlocutory order precluding the State, in the capital murder trial of defendant, Alturik Francis, from utilizing defendant's family members' testimony before the Union County grand jury on January 31, 2003 for any purpose, with the exception that the State may, subject to the discretion of the trial judge, utilize at trial inculpatory statements allegedly made by defendant to a family member. We affirm the court's order as modified by this opinion.

We hold that the "dominant purpose" test was correctly utilized and applied by the trial judge in determining whether the assistant prosecutor (prosecutor) misused the pre-indictment grand jury by obtaining mitigation evidence to be used at the penalty phase of defendant's trial. We, however, modify the July 13, 2005 order to permit the prosecutor to use the grand jury record to impeach any family member's testimony or expert testimony based on family member's statements that are offered by defendant at the guilt phase of defendant's trial. The prosecutor may also utilize at trial any inculpatory statements made by defendant to a family member.

On February 26, 2003, at a subsequent session, the grand jury returned its Indictment No. 03-02-00170 against defendant charging him, in thirteen counts, with three counts of first-degree murder for the deaths of Majuly Collins, Catherine Almazal and Eduardo Almazal, in violation of N.J.S.A. 2C:11-3a(1) and (2) (Counts One to Three); three counts of first-degree felony murder for the deaths of Majuly Collins, Catherine Almazal and Eduardo Almazal, in violation of N.J.S.A. 2C:11-3a(3) (Counts Four to Six); first-degree attempted murder of Susan Vargas, in violation of N.J.S.A. 2C:11-3 and 2C:5-1 (Count Seven); second-degree burglary, in violation of N.J.S.A. 2C:18-2 (Count Eight); first-degree robbery, in violation of N.J.S.A. 2C:15-1 (Count Nine); first-degree aggravated sexual assault, in violation of N.J.S.A. 2C:14-2a(3) and (4) (Count Ten); two counts of third-degree possession of a knife with the purpose to use it unlawfully against the persons of Majuly Collins and Susan Vargas, in violation of N.J.S.A. 2C:39-4d (Counts Eleven to Twelve); and fourth-degree unlawful possession of a knife under circumstances not manifestly appropriate, in violation of N.J.S.A. 2C:39-5d (Count Thirteen).

A notice of aggravating factors was served by the State on the defense for all three murders, indicating the State's intention to seek the death penalty. Thereafter, pursuant to State v. Fortin, 178 N.J. 540, 632 (2004), the State again presented this matter to the grand jury. On June 17, 2005, a second notice of aggravating factors, listing the same factors, was handed up.

On April 15, 2003, defendant filed two notices: (1) that he would assert the defense of diminished capacity, pursuant to N.J.S.A. 2C:4-2, and (2) that he would claim the defense of intoxication, pursuant to N.J.S.A. 2C:2-8d.

On March 8, 2004, defendant, alleging prosecutorial misconduct in the use of the grand jury on January 31, 2003, moved to dismiss the indictment and sought other relief. Defendant contended that the prosecutor had improperly questioned four of his closest family members before the grand jury in an effort to obtain penalty phase mitigation evidence and circumvent the restrictions of Rule 3:13-4(b).

On August 2, 2004, the judge issued a written opinion denying defendant's request that the indictment be dismissed, that the Union County Prosecutor's Office be recused from prosecuting the indictment, and that the death penalty be barred. He ruled, however, that the State was precluded from using the testimony of the four members of defendant's family "in any proceeding in this case." We granted the State's motion for leave to appeal on August 25, 2005.

The State's investigation indicates that during the early morning hours of December 7, 2002, Majuly Collins, age thirty-two, her son, Eduardo Almaza, age four, and her daughter, Catherine Almaza, eighteen months, were killed in their apartment in Elizabeth. Majuly Collins was sexually assaulted and stabbed and her children were suffocated. The three bodies were found in the apartment bathtub. Susan Vargas, age twenty-one, had been living temporarily with Majuly Collins and was also stabbed. Vargas feigned her death, and after her assailant left the apartment, she contacted a relative and the police were notified. Although seriously injured, Vargas told the police that the black male who lived in the downstairs apartment was responsible for what had occurred.

Based upon the particularly gruesome nature of the triple homicide, the State immediately began to focus on aggravating factors in support of the death penalty. Investigators for the county prosecutor obtained school records and court documents. Former school administrators, teachers and employers were asked about defendant's use of drugs or alcohol, his mental health and whether he suffered from blackouts, hearing voices, or hallucinations. The inquiry was clearly appropriate and acceptable investigatory conduct.

On January 31, 2003, the prosecutor presented testimony from defendant's step-father, George Martin, mother, Diane Martin, sister, Kinaya Houston and brother-in-law, Tony Houston to the grand jury. At the outset of the proceedings, the prosecutor announced to the grand jurors that they would not be hearing evidence "at this point" to determine whether to hand up an indictment.

On February 26, 2003, the State presented the testimony of Detectives Ismael Olivero and Carl Riley, as well as twenty exhibits, including Vargas' statement and defendant's four confessions. Based on that evidence, the grand jury returned its indictment.

Defendant contends that the prosecutor improperly used the grand jury on January 31 to uncover facts relevant to his penalty phase mitigation claims in violation of Rule 3:13-4(b). The State contends that there were legitimate grounds for obtaining the January 31, 2003 testimony of defendant's family members. It argues it was engaged in an appropriate pre-indictment investigation to inquire into the mental state necessary for the commission of the crimes charged, i.e., whether defendant performed the acts purposely or knowingly, and whether there were facts that would support an intoxication or diminished capacity defense.

Read State of New Jersey v Alturik Francis here

http://www.judiciary.state.nj.us/appdiv/choices.htm

NJ Appellate process

WestLaw by Credit Card

New Jersey's "Three Strikes" Law

Selected references to New Jersey's "Three Strikes" Law with links

2C:14-6. Sentencing

If a person is convicted of a second or subsequent offense under sections 2C:14-2 or 2C:14-3a., the sentence imposed under those sections for the second or subsequent offense shall, unless the person is sentenced pursuant to the provisions of 2C:43-7, include a fixed minimum sentence of not less than 5 years during which the defendant shall not be eligible for parole. The court may not suspend or make any other non-custodial disposition of any person sentenced as a second or subsequent offender pursuant to this section. For the purpose of this section an offense is considered a second or subsequent offense, if the actor has at any time been convicted under sections 2C:14-2 or 2C:14-3a. or under any similar statute of the United States, this state, or any other state for an offense that is substantially equivalent to sections 2C:14-2 or 2C:14-3a.

L.1978, c. 95, s. 2C:14-6, eff. Sept. 1, 1979.

__________

2C:24-9 Use of 17-year-old or younger to commit criminal offense; crime.

1. a. Except as provided in P.L.1991, c.81 (C.2C:20-17) and N.J.S.2C:35-6, any person who is at least 18 years of age who knowingly uses, solicits, directs, hires, employs or conspires with a person who is in fact 17 years of age or younger to commit a criminal offense is guilty of a crime.

b.An offense under this section constitutes a crime of the fourth degree if the underlying offense is a disorderly persons offense. Otherwise, an offense under this section shall be classified one degree higher than the underlying offense.

c.Notwithstanding the provisions of N.J.S.2C:1-8, a conviction under this section shall not merge with a conviction for the underlying offense. Nor shall a conviction for the underlying offense merge with a conviction under this section. Nothing contained in this act shall prohibit the court from imposing an extended term of imprisonment pursuant to 2C:43-7; nor shall this be construed to preclude or limit a prosecution or conviction of any person for conspiracy under N.J.S.2C:5-2, or any prosecution or conviction for any offense.

d.It shall be no defense to a prosecution under this act that the actor mistakenly believed that the person which the actor used, solicited, directed, hired or employed was 18 years of age or older, even if such mistaken belief was reasonable.

L.1998,c.102,s.1.

__________

2C:43-2 Sentence in accordance with code; authorized dispositions.

Sentence in accordance with code; authorized dispositions. a. Except as otherwise provided by this code, all persons convicted of an offense or offenses shall be sentenced in accordance with this chapter.

b.Except as provided in subsection a. of this section and subject to the applicable provisions of the code, the court may suspend the imposition of sentence on a person who has been convicted of an offense, or may sentence him as follows:

(1)To pay a fine or make restitution authorized by N.J.S.2C:43-3 or P.L.1997, c.253 (C.2C:43-3.4 et al.); or

(2)Except as provided in subsection g. of this section, to be placed on probation and, in the case of a person convicted of a crime, to imprisonment for a term fixed by the court not exceeding 364 days to be served as a condition of probation, or in the case of a person convicted of a disorderly persons offense, to imprisonment for a term fixed by the court not exceeding 90 days to be served as a condition of probation; or

(3)To imprisonment for a term authorized by sections 2C:11-3, 2C:43-5, 2C:43-6, 2C:43-7, and 2C:43-8 or 2C:44-5; or

(4)To pay a fine, make restitution and probation, or fine, restitution and imprisonment; or

(5)To release under supervision in the community or to require the performance of community-related service; or

(6)To a halfway house or other residential facility in the community, including agencies which are not operated by the Department of Human Services; or

(7)To imprisonment at night or on weekends with liberty to work or to participate in training or educational programs.

c.Instead of or in addition to any disposition made according to this section, the court may postpone, suspend, or revoke for a period not to exceed two years the driver's license, registration certificate, or both of any person convicted of a crime, disorderly persons offense, or petty disorderly persons offense in the course of which a motor vehicle was used. In imposing this disposition and in deciding the duration of the postponement, suspension, or revocation, the court shall consider the severity of the crime or offense and the potential effect of the loss of driving privileges on the person's ability to be rehabilitated. Any postponement, suspension, or revocation shall be imposed consecutively with any custodial sentence.

d.This chapter does not deprive the court of any authority conferred by law to decree a forfeiture of property, suspend or cancel a license, remove a person from office, or impose any other civil penalty. Such a judgment or order may be included in the sentence.

e.The court shall state on the record the reasons for imposing the sentence, including its findings pursuant to the criteria for withholding or imposing imprisonment or fines under sections 2C:44-1 to 2C:44-3, where imprisonment is imposed, consideration of the defendant's eligibility for release under the law governing parole and the factual basis supporting its findings of particular aggravating or mitigating factors affecting sentence.

f.The court shall explain the parole laws as they apply to the sentence and shall state:

(1)the approximate period of time in years and months the defendant will serve in custody before parole eligibility;

(2)the jail credits or the amount of time the defendant has already served;

(3)that the defendant may be entitled to good time and work credits; and

(4)that the defendant may be eligible for participation in the Intensive Supervision Program.

g.Notwithstanding the provisions of paragraph (2) of subsection b. of this section, a court imposing sentence on a defendant who has been convicted of any offense enumerated in subsection a. of section 2 of P.L.1994, c.130 (C.2C:43-6.4) may not sentence the defendant to be placed on probation.

Amended 1979, c.178, s.82; 1981, c.269, s.2; 1983, c.124, s.1; 1987, c.106, s.9; 1994, c.155; 1997, c.253, s.1; 2003, c.267, s.5.

__________

2C:43-7 Sentence of imprisonment for crime; extended terms.

2C:43-7. Sentence of Imprisonment for Crime; Extended Terms.

a.In the cases designated in section 2C:44-3, a person who has been convicted of a crime may be sentenced, and in the cases designated in subsection e. of section 2 of P.L.1994, c.130 (C.2C:43-6.4), in subsection b. of section 2 of P.L.1995, c.126 (C.2C:43-7.1) and in the cases designated in section 1 of P.L.1997, c.410 (C.2C:44-5.1), a person who has been convicted of a crime shall be sentenced, to an extended term of imprisonment, as follows:

(1)In case of aggravated manslaughter sentenced under subsection c. of N.J.S.2C:11-4; or kidnapping when sentenced as a crime of the first degree under paragraph (1) of subsection c. of 2C:13-1; or aggravated sexual assault if the person is eligible for an extended term pursuant to the provisions of subsection g. of N.J.S.2C:44-3 for a specific term of years which shall be between 30 years and life imprisonment;

(2)Except for the crime of murder and except as provided in paragraph (1) of this subsection, in the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 20 years and life imprisonment;

(3)In the case of a crime of the second degree, for a term which shall be fixed by the court between 10 and 20 years;

(4)In the case of a crime of the third degree, for a term which shall be fixed by the court between five and 10 years;

(5)In the case of a crime of the fourth degree pursuant to 2C:43-6c, 2C:43-6g and 2C:44-3d for a term of five years, and in the case of a crime of the fourth degree pursuant to any other provision of law for a term which shall be fixed by the court between three and five years;

(6)In the case of the crime of murder, for a specific term of years which shall be fixed by the court between 35 years and life imprisonment, of which the defendant shall serve 35 years before being eligible for parole;

(7)In the case of kidnapping under paragraph (2) of subsection c. of 2C:13-1, for a specific term of years which shall be fixed by the court between 30 years and life imprisonment, of which the defendant shall serve 30 years before being eligible for parole.

b.As part of a sentence for an extended term and notwithstanding the provisions of 2C:43-9, the court may fix a minimum term not to exceed one-half of the term set pursuant to subsection a. during which the defendant shall not be eligible for parole or a term of 25 years during which time the defendant shall not be eligible for parole where the sentence imposed was life imprisonment; provided that no defendant shall be eligible for parole at a date earlier than otherwise provided by the law governing parole.

c.In the case of a person sentenced to an extended term pursuant to 2C:43-6c, 2C:43-6f and 2C:44-3d, the court shall impose a sentence within the ranges permitted by 2C:43-7a(2), (3), (4) or (5) according to the degree or nature of the crime for which the defendant is being sentenced, which sentence shall include a minimum term which shall, except as may be specifically provided by N.J.S.2C:43-6f, be fixed at or between one-third and one-half of the sentence imposed by the court or five years, whichever is greater, during which the defendant shall not be eligible for parole. Where the sentence imposed is life imprisonment, the court shall impose a minimum term of 25 years during which the defendant shall not be eligible for parole, except that where the term of life imprisonment is imposed on a person convicted for a violation of N.J.S.2C:35-3, the term of parole ineligibility shall be 30 years.

d.In the case of a person sentenced to an extended term pursuant to N.J.S.2C:43-6g, the court shall impose a sentence within the ranges permitted by N.J.S.2C:43-7a(2), (3), (4) or (5) according to the degree or nature of the crime for which the defendant is being sentenced, which sentence shall include a minimum term which shall be fixed at 15 years for a crime of the first or second degree, eight years for a crime of the third degree, or five years for a crime of the fourth degree during which the defendant shall not be eligible for parole. Where the sentence imposed is life imprisonment, the court shall impose a minimum term of 25 years during which the defendant shall not be eligible for parole, except that where the term of life imprisonment is imposed on a person convicted of a violation of N.J.S.2C:35-3, the term of parole eligibility shall be 30 years.

Amended 1979, c.178, s.86; 1981, c.31, s.2; 1982, c.111, s.2; 1986, c.172, s.3; 1987, c.106, s.13; 1988, c.44, s.14; 1990, c.32, s.7; 1990, c.87, s.3; 1994, c.127, s.1; 1994, c.130, s.3; 1995, c.126, s.3; 1997, c.410, s.2; 2001, c.443, s.6; 2003, c.267, s.4.

2C:43-7.1. Life imprisonment without parole

2. a. Life Imprisonment Without Parole. A person convicted of a crime under any of the following: N.J.S.2C:11-3; subsection a. of N.J.S.2C:11-4; a crime of the first degree under N.J.S.2C:13-1, paragraphs (3) through (6) of subsection a. of N.J.S.2C:14-2; N.J.S.2C:15-1; or section 1 of P.L.1993, c.221 (C.2C:15-2), who has been convicted of two or more crimes that were committed on prior and separate occasions, regardless of the dates of the convictions, under any of the foregoing sections or under any similar statute of the United States, this State, or any other state for a crime that is substantially equivalent to a crime under any of the foregoing sections, shall be sentenced to a term of life imprisonment by the court, with no eligibility for parole.

b.Extended Term for Repeat Violent Offenders. A person shall be sentenced to an extended term of imprisonment pursuant to N.J.S.2C:43-7 if:

(1)The person is convicted of any of the following crimes: a crime of the second degree under N.J.S.2C:11-4; a crime of the second or third degree under subsection b. of N.J.S.2C:12-1; a crime of the second degree under N.J.S.2C:13-1; a crime under N.J.S.2C:14-3 for aggravated criminal sexual contact under any of the circumstances set forth in paragraphs (3) through (6) of subsection a. of N.J.S.2C:14-2; a crime of the second degree under N.J.S.2C:15-1; a crime of the second degree under N.J.S.2C:18-2; or a crime of the second degree under N.J.S.2C:39-4 for possession of a weapon with the purpose of using it unlawfully against the person of another, and the person has been convicted of any of the foregoing crimes or any of the crimes enumerated in subsection a. of this section or under any similar statute of the United States, this State, or any other state for a crime that is substantially equivalent to a crime enumerated in this subsection or in subsection a. of this section committed on two or more prior and separate occasions regardless of the dates of the convictions; or

(2)The person is convicted of a crime enumerated in subsection a. of this section, does not have two or more prior convictions that require sentencing under subsection a. and has two or more prior convictions that would require sentencing under paragraph (1) of this subsection if the person had been convicted of a crime enumerated in paragraph (1).

c.The provisions of this section shall not apply unless the prior convictions are for crimes committed on separate occasions and unless the crime for which the defendant is being sentenced was committed either within 10 years of the date of the defendant's last release from confinement for commission of any crime or within 10 years of the date of the commission of the most recent of the crimes for which the defendant has a prior conviction.

d.The court shall not impose a sentence of imprisonment pursuant to this section, unless the ground therefor has been established at a hearing after the conviction of the defendant and on written notice to the defendant of the ground proposed. The defendant shall have the right to hear and controvert the evidence against him and to offer evidence upon the issue. Prior convictions shall be defined and proven in accordance with N.J.S.2C:44-4.

e.For purposes of this section, a term of life shall mean the natural life of a person sentenced pursuant to this section. Except that a defendant who is at least 70 years of age and who has served at least 35 years in prison pursuant to a sentence imposed under this section shall be released on parole if the full Parole Board determines that the defendant is not a danger to the safety of any other person or the community.

L.1995,c.126,s.2; amended 2003, c.48.

2C:43-7.2 Mandatory service of 85% of sentence for certain offenses.

2. a. A court imposing a sentence of incarceration for a crime of the first or second degree enumerated in subsection d. of this section shall fix a minimum term of 85% of the sentence imposed, during which the defendant shall not be eligible for parole.

b.The minimum term required by subsection a. of this section shall be fixed as a part of every sentence of incarceration imposed upon every conviction of a crime enumerated in subsection d. of this section, whether the sentence of incarceration is determined pursuant to N.J.S.2C:43-6, N.J.S.2C:43-7, N.J.S.2C:11-3 or any other provision of law, and shall be calculated based upon the sentence of incarceration actually imposed. The provisions of subsection a. of this section shall not be construed or applied to reduce the time that must be served before eligibility for parole by an inmate sentenced to a mandatory minimum period of incarceration. Solely for the purpose of calculating the minimum term of parole ineligibility pursuant to subsection a. of this section, a sentence of life imprisonment shall be deemed to be 75 years.

c.Notwithstanding any other provision of law to the contrary and in addition to any other sentence imposed, a court imposing a minimum period of parole ineligibility of 85 percent of the sentence pursuant to this section shall also impose a five-year term of parole supervision if the defendant is being sentenced for a crime of the first degree, or a three-year term of parole supervision if the defendant is being sentenced for a crime of the second degree. The term of parole supervision shall commence upon the completion of the sentence of incarceration imposed by the court pursuant to subsection a. of this section unless the defendant is serving a sentence of incarceration for another crime at the time he completes the sentence of incarceration imposed pursuant to subsection a., in which case the term of parole supervision shall commence immediately upon the defendant's release from incarceration. During the term of parole supervision the defendant shall remain in release status in the community in the legal custody of the Commissioner of the Department of Corrections and shall be supervised by the State Parole Board as if on parole and shall be subject to the provisions and conditions of section 3 of P.L.1997, c.117 (C.30:4-123.51b).

d.The court shall impose sentence pursuant to subsection a. of this section upon conviction of the following crimes or an attempt or conspiracy to commit any of these crimes:

(1)N.J.S.2C:11-3, murder;

(2)N.J.S.2C:11-4, aggravated manslaughter or manslaughter;

(3)N.J.S.2C:11-5, vehicular homicide;

(4)subsection b. of N.J.S.2C:12-1, aggravated assault;

(5)subsection b. of N.J.S.2C:12-11, disarming a law enforcement officer;

(6)N.J.S.2C:13-1, kidnapping;

(7)subsection a. of N.J.S.2C:14-2, aggravated sexual assault;

(8)subsection b. of N.J.S.2C:14-2 and paragraph (1) of subsection c. of N.J.S.2C:14-2, sexual assault;

(9)N.J.S.2C:15-1, robbery;

(10) section 1 of P.L.1993, c.221 (C.2C:15-2), carjacking;

(11) paragraph (1) of subsection a. of N.J.S.2C:17-1, aggravated arson;

(12) N.J.S.2C:18-2, burglary;

(13) subsection a. of N.J.S.2C:20-5, extortion;

(14) subsection b. of section 1 of P.L.1997, c.185 (C.2C:35-4.1), booby traps in manufacturing or distribution facilities; or

(15) N.J.S.2C:35-9, strict liability for drug induced deaths.

(16) section 2 of P.L.2002, c.26 (C.2C:38-2), terrorism; or

(17) section 3 of P.L.2002, c.26 (C.2C:38-3), producing or possessing chemical weapons, biological agents or nuclear or radiological devices.

e.(Deleted by amendment, P.L.2001, c.129).

L.1997,c.117,s.2; amended 2001, c.79, s.16; 2001, c.129, s.1; 2002, c.26, s.19.

__________

30:4-123.51. Eligibility for parole

7. a. Each adult inmate sentenced to a term of incarceration in a county penal institution, or to a specific term of years at the State Prison or the correctional institution for women shall become primarily eligible for parole after having served any judicial or statutory mandatory minimum term, or one-third of the sentence imposed where no mandatory minimum term has been imposed less commutation time for good behavior pursuant to N.J.S.2A:164-24 or R.S.30:4-140 and credits for diligent application to work and other institutional assignments pursuant to P.L.1972, c.115 (C.30:8-28.1 et seq.) or R.S.30:4-92. Consistent with the provisions of the New Jersey Code of Criminal Justice (N.J.S.2C:11-3, 2C:14-6, 2C:43-6, 2C:43-7), commutation and work credits shall not in any way reduce any judicial or statutory mandatory minimum term and such credits accrued shall only be awarded subsequent to the expiration of the term.

b.Each adult inmate sentenced to a term of life imprisonment shall become primarily eligible for parole after having served any judicial or statutory mandatory minimum term, or 25 years where no mandatory minimum term has been imposed less commutation time for good behavior and credits for diligent application to work and other institutional assignments. If an inmate sentenced to a specific term or terms of years is eligible for parole on a date later than the date upon which he would be eligible if a life sentence had been imposed, then in such case the inmate shall be eligible for parole after having served 25 years, less commutation time for good behavior and credits for diligent application to work and other institutional assignments. Consistent with the provisions of the New Jersey Code of Criminal Justice (N.J.S.2C:11-3, 2C:14-6, 2C:43-6, 2C:43-7), commutation and work credits shall not in any way reduce any judicial or statutory mandatory minimum term and such credits accrued shall only be awarded subsequent to the expiration of the term.

c.Each inmate sentenced to a specific term of years pursuant to the "Controlled Dangerous Substances Act," P.L.1970, c.226 (C.24:21-1 through 45) shall become primarily eligible for parole after having served one-third of the sentence imposed less commutation time for good behavior and credits for diligent application to work and other institutional assignments.

d.Each adult inmate sentenced to an indeterminate term of years as a young adult offender pursuant to N.J.S.2C:43-5 shall become primarily eligible for parole consideration pursuant to a schedule of primary eligibility dates developed by the board, less adjustment for program participation. In no case shall the board schedule require that the primary parole eligibility date for a young adult offender be greater than the primary parole eligibility date required pursuant to this section for the presumptive term for the crime authorized pursuant to N.J.S.2C:44-1(f).

e.Each adult inmate sentenced for an offense specified in N.J.S.2C:47-1 shall become primarily eligible for parole as follows:

(1)If the court finds that the offender's conduct was not characterized by a pattern of repetitive, compulsive behavior or finds that the offender is not amenable to sex offender treatment, or if after sentencing the Department of Corrections in its most recent examination determines that the offender is not amenable to sex offender treatment, the offender shall become primarily eligible for parole after having served any judicial or statutory mandatory minimum term or one-third of the sentence imposed where no mandatory minimum term has been imposed. Neither such term shall be reduced by commutation time for good behavior pursuant to R.S.30:4-140 or credits for diligent application to work and other institutional assignments pursuant to R.S.30:4-92.

(2)All other offenders shall be eligible for parole pursuant to the provisions of N.J.S.2C:47-5, except no offender shall become primarily eligible for parole prior to the expiration of any judicial or statutory mandatory minimum term.

f.Each juvenile inmate committed to an indeterminate term shall be immediately eligible for parole.

g.Each adult inmate of a county jail, workhouse or penitentiary shall become primarily eligible for parole upon service of 60 days of his aggregate sentence or as provided for in subsection a. of this section, whichever is greater. Whenever any such inmate's parole eligibility is within six months of the date of such sentence, the judge shall state such eligibility on the record which shall satisfy all public and inmate notice requirements. The chief executive officer of the institution in which county inmates are held shall generate all reports pursuant to subsection d. of section 10 of P.L.1979, c.441 (C.30:4-123.54). The parole board shall have the authority to promulgate time periods applicable to the parole processing of inmates of county penal institutions, except that no inmate may be released prior to the primary eligibility date established by this subsection, unless consented to by the sentencing judge. No inmate sentenced to a specific term of years at the State Prison or the correctional institution for women shall become primarily eligible for parole until service of a full nine months of his aggregate sentence.

h.When an inmate is sentenced to more than one term of imprisonment, the primary parole eligibility terms calculated pursuant to this section shall be aggregated by the board for the purpose of determining the primary parole eligibility date, except that no juvenile commitment shall be aggregated with any adult sentence. The board shall promulgate rules and regulations to govern aggregation under this subsection.

i.The primary eligibility date shall be computed by a designated representative of the board and made known to the inmate in writing not later than 90 days following the commencement of the sentence. In the case of an inmate sentenced to a county penal institution such notice shall be made pursuant to subsection g. of this section. Each inmate shall be given the opportunity to acknowledge in writing the receipt of such computation. Failure or refusal by the inmate to acknowledge the receipt of such computation shall be recorded by the board but shall not constitute a violation of this subsection.

j.Except as provided in this subsection, each inmate sentenced pursuant to N.J.S.2A:113-4 for a term of life imprisonment, N.J.S.2A:164-17 for a fixed minimum and maximum term or N.J.S.2C:1-1(b) shall not be primarily eligible for parole on a date computed pursuant to this section, but shall be primarily eligible on a date computed pursuant to P.L.1948, c.84 (C.30:4-123.1 et seq.), which is continued in effect for this purpose. Inmates classified as second, third or fourth offenders pursuant to section 12 of P.L.1948, c.84 (C.30:4-123.12) shall become primarily eligible for parole after serving one-third, one-half or two-thirds of the maximum sentence imposed, respectively, less in each instance commutation time for good behavior and credits for diligent application to work and other institutional assignments; provided, however, that if the prosecuting attorney or the sentencing court advises the board that the punitive aspects of the sentence imposed on such inmates will not have been fulfilled by the time of parole eligibility calculated pursuant to this subsection, then the inmate shall not become primarily eligible for parole until serving an additional period which shall be one-half of the difference between the primary parole eligibility date calculated pursuant to this subsection and the parole eligibility date calculated pursuant to section 12 of P.L.1948, c.84 (C.30:4-123.12). If the prosecuting attorney or the sentencing court advises the board that the punitive aspects of the sentence have not been fulfilled, such advice need not be supported by reasons and will be deemed conclusive and final. Any such decision shall not be subject to judicial review except to the extent mandated by the New Jersey and United States Constitutions. The board shall, reasonably prior to considering any such case, advise the prosecuting attorney and the sentencing court of all information relevant to such inmate's parole eligibility.

k.Notwithstanding any provisions of this section to the contrary, a person sentenced to imprisonment pursuant to paragraph (2) or (3) of subsection b. of N.J.S.2C:11-3 shall not be eligible for parole.

l.Notwithstanding the provisions of subsections a. through j. of this section, the appropriate board panel, as provided in section 1 of P.L.1997, c.214 (C.30:4-123.51c), may release an inmate serving a sentence of imprisonment on medical parole at any time.

L.1979, c.441, s.7; amended 1982, c.71, s.2; 1997, c.60, s.3; 1997, c.214, s.2; 1998, c.73, s.2.

30:4-123.51a. Inmate of county penal institution; revocation of parole; denial of credits and ineligibility for parole
Pursuant to section 16 of P.L.1979, c. 441 (C. 30:4-123.60), any inmate sentenced to a term of incarceration in a county penal institution who is granted parole and whose parole is revoked, shall not be credited for any time served during that parole and shall not be eligible for parole during the remainder of that county sentence.

L.1982, c. 71, s. 5, eff. July 16, 1982.

30:4-123.51b Released status under term of parole supervision; rules, regulations; conditions applicable to parole supervision for life.

3. a. A person who has been sentenced to a term of parole supervision and is on release status in the community pursuant to section 2 of P.L.1997, c.117 (C.2C:43-7.2) shall, during the term of parole supervision, remain on release status in the community, in the legal custody of the Commissioner of the Department of Corrections, and shall be supervised by the Division of Parole of the State Parole Board as if on parole, and shall be subject to the provisions and conditions set by the appropriate board panel. The appropriate board panel shall have the authority, in accordance with the procedures and standards set forth in sections 15 through 21 of P.L.1979, c.441 (C.30:4-123.59 through 30:4-123.65), to revoke the person's release status and return the person to custody for the remainder of the term or until it is determined, in accordance with regulations adopted by the board, that the person is again eligible for release consideration pursuant to section 9 of P.L.1979, c.441 (C.30:4-123.53).

b.The Parole Board shall promulgate rules and regulations necessary to carry out the purposes of this act pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).

c.A person who has been sentenced to a term of parole supervision for life pursuant to section 2 of P.L.1994, c.130 (C.2C:43-6.4) shall, during the term of parole supervision, remain in the legal custody of the Commissioner of Corrections, be supervised by the Division of Parole of the State Parole Board, and be subject to the provisions and conditions set by the appropriate board panel in accordance with the procedures and standards set forth in sections 15 through 19 and 21 of P.L.1979, c.441 (C.30:4-123.59 through 30:4-123.63 and 30:4-123.65). If the parolee violates a condition of a special sentence of parole supervision for life, the parolee shall be subject to the provisions of sections 16 through 19 and 21 of P.L.1979, c.441 (C.30:4-123.60 through 30:4-123.63 and 30:4-123.65), and may be returned to prison. If revocation and return to custody are desirable pursuant to the provisions of section 19 of P.L.1979, c.441 (C.30:4-123.63), the appropriate board panel shall revoke parole and return the parolee to prison for a specified length of time between 12 and 18 months, which shall not be reduced by commutation time for good behavior pursuant to R.S.30:4-140 or credits for diligent application of work and other institutional assignments pursuant to R.S.30:4-92; provided, however, that nothing contained in this subsection shall be construed or applied to reduce the time that must be served after revocation of parole by a parolee returned to prison for a violation of a condition of any other term of parole supervision. Upon the parolee's release from prison, the parolee shall continue to serve the special sentence of parole supervision for life until released by the Superior Court pursuant to subsection c. of section 2 of P.L.1994, c.130 (C.2C:43-6.4). For the purpose of calculating the limitation on time served pursuant to section 21 of P.L.1979, c.441 (C.30:4-123.65), the custodial term imposed upon the parolee related to the special sentence of parole supervision for life shall be deemed to be a term of life imprisonment. For the purpose of establishing a primary parole eligibility date pursuant to subsection h. of section 7 of P.L.1979, c. 441 (C.30:4-123.51), the specific period of incarceration required to be served pursuant to this subsection shall not be aggregated with a term of imprisonment imposed on the parolee for the commission of any other offense. Nothing in this section shall be construed to preclude or limit the prosecution or conviction for any crime defined in any law of this State, or to limit in any manner the State's ability to pursue both a criminal action and a parole violation pursuant to the provisions of this section or any other law.

L.1997,c.117,s.3; amended 2001, c.79, s.6; 2003, c.267, s.2.

About the Appellate Division in New Jersey

From The New Jersey Judiciary website

The Appellate Division of the Superior Court is New Jersey's intermediate Appellate Court. It is comprised of 32 judges who sit in two and three judge panels chosen from parts consisting of four judges. Appellate Division judges hear appeals from decisions of the Trial Courts, the Tax Court and State administrative agencies. The Appellate Division decides approximately 7,000 appeals and 7,500 motions each year.

Each part is administered by a Presiding Judge. The Honorable Edwin H. Stern, serves as the Court's Presiding Judge for Administration. The chambers of the Appellate Division judges are located in Hackensack, Morristown, Jersey City, Springfield, New Brunswick, Red Bank, Trenton, Toms River, Westmont, and Atlantic City. Arguments are heard in courtrooms located in Atlantic City, Elizabeth, Hackensack, Morristown, Newark, and Trenton.

The Appellate Division considers appeals timely taken as of right from the final judgments of the Law Division and the Chancery Division of the Superior Court, in addition to the final decisions of State administrative agencies. Litigants requiring Appellate Division review of interlocutory or interim orders of a trial court or agency may do so only with leave of the Court. This requires the filing of a motion for leave to appeal, which may be granted and ruled upon immediately, granted and permitted to be processed for a later determination, or denied. If leave is denied, the party seeking review may do so as of right following the final judgment of the trial court or administrative agency.

Some appeals are, however, disposed of through other programs established by the Appellate Division for the processing of certain types of appeals as described below:

Civil Appeals Settlement Program (CASP) This program is designed to identify, at the initial phase of processing, those appeals which could possibly be settled. Alternatively, appeals with very complex issues may be selected for a pre-argument conference, in order to delineate and clarify those issues prior to briefing.

Sentencing Calendars were initially designed to dispose of those appeals in which the sole issue on appeal was the excessiveness of the sentence imposed. The program has been expanded to include additional sentencing issues. Because of the narrow issues being addressed, appeals considered in this program are argued without the need for full briefing.

Send E-Mail comments to the Appellate Clerk, John M. Chacko, at John.Chacko@judiciary.state.nj.us

Copyrighted © 2001 - New Jersey Judiciary