State v. Jiminez

551 A.2d 191, 229 N.J. Super. 256, 1988 N.J. Super. LEXIS 450
CourtNew Jersey Superior Court Appellate Division
DecidedDecember 12, 1988
StatusPublished
Cited by4 cases

This text of 551 A.2d 191 (State v. Jiminez) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Jiminez, 551 A.2d 191, 229 N.J. Super. 256, 1988 N.J. Super. LEXIS 450 (N.J. Ct. App. 1988).

Opinion

The opinion of the court was delivered by

GRUCCIO, J.A.D.

The State appeals from a judgment dismissing Indictment No. 87-08-1404 charging Allan Jiminez with violating N.J.S.A. 2C:29-5(a), escape. At the time of defendant’s flight from this jurisdiction, he was a participant in the New Jersey Intensive Supervision Program (ISP). The trial court found that ISP did not constitute official custody and therefore defendant could not be charged with the separate offense of escape. We reverse and remand this matter for trial.

Here are the facts: On June 25, 1985, defendant was convicted on two counts of third degree burglary, N.J.S.A. 2C:18-2, and two counts of third degree theft of moveable property, N.J.S.A. 2C:20-3(a). On November 8, 1985, defendant was sentenced to serve a maximum of ten years in Yardville Peni[258]*258tentiary. Defendant made an application to the Intensive Supervision Program (ISP) and was accepted into the 90-day screening program in May 1986. On October 30,1986, a 90-day review board recommended that defendant be placed in an alcohol treatment facility for 28 days as a condition of entry into ISP.

Defendant entered the Turning Point Program in Verona, New Jersey, on January 20, 1987, and subsequently left the facility against medical advice after eight days. Defendant fled the jurisdiction and later surrendered to authorities in Florida. Thereafter, defendant was extradited to New Jersey and expelled from the ISP. On August 19, 1987, defendant was indicted by a grand jury and charged with the separate offense of escape pursuant to N.J.S.A. 2C:29-5(a).

The record of the ISP court proceedings indicates that defendant was informed prior to his admission into ISP that he would be charged with a separate offense of escape if he left the State of New Jersey. We are told that all ISP participants are informed of this consequence.

On September 11, 1987, defendant entered a plea of not guilty along with a motion to dismiss the charge of escape, which was granted. The motion judge found that defendant could not be charged with escape as delineated in N.J.S.A. 2C:29-5(a) because defendant was not in “official detention” as contemplated by the statute. The State appeals and presents arguments regarding the intended construction of criminal statutes; policy concerns dealing with the underlying justification of ISP, and the viability of the ISP in general.

We agree with the State that ISP constitutes official detention as contemplated by N.J.S.A. 2C:29-5(a). We also find that the terms of defendant’s ISP sentence established official detention. Defendant was confined in a pre-approved residence from 8 p.m. to 6 a.m. every night and could have been required, at any given time, to wear an electronic wristlet, to allow closer surveillance of his movements. His residence was also open to [259]*259unannounced, warrantless searches 24 hours a day. Defendant was not permitted to use drugs or alcohol, and was subject to random urinalysis tests to enforce that restriction. Moreover, he was required to obtain and maintain employment throughout his program sentence and was not permitted to obtain public assistance. These restrictions along with the intense, frequent and unscheduled observations by the ISP officers and community sponsors parallel the restrictions of incarceration.

In addition, at the ISP resentencing hearing, defendant was informed that he would receive credit for all time served in the program against his original ten-year prison term if he violated his ISP sentence.1 Defendant was also informed that he would be charged with the separate crime of escape if he violated the physical confines of the ISP sentence.

Clearly, where sentencing combines both probation and custodial terms, defendant must be given credit only for time served in the custodial portion of that sentence. State v. Carlough, 183 N.J.Super. 234, 236 (App.Div.1982). This demonstrates that custody and credit for time served are unequivocally linked. Therefore, where a question arises as to whether a defendant was or was not in custody, the availability of credit against time served carries great weight toward the resolution of the issue. State v. Reyes, 207 N.J.Super. 126, 145 (App.Div.), certif. den. 103 N.J. 499 (1986).

This program so closely resembles incarceration that the time served must rightfully be taken into account in determining the remaining prison sentence to be served. R. 3:21-8. Likewise, ISP mandates credit for time served. These factors demonstrate that the program is in fact official detention.

ISP is a program developed by the Supreme Court and overseen by the Administrative Office of the Courts (AOC). [260]*260Our Supreme Court has mandated the granting of credit for time served in ISP. The trial judge failed to recognize the importance of this and erred when he found that the ISP was not official detention. The issue of official detention has been considered by the program designers and administrators to be a settled question.

ISP extradites all violators who flee the state of New Jersey. Recently, extraditions were arranged from Colorado, California and Canada. Program participants who unlawfully leave the jurisdiction of the state are subject to being indicted for escape. Indictments have been obtained through the cooperation of local prosecutor’s offices. [ISP Progress Report, August 1988 p. 5; emphasis supplied].2

In State v. Abbati, 99 N.J. 418 (1985), the Supreme Court clearly established its inherent power to administrate the criminal justice system. By specific reference, ISP is yet another instrument by which the court effectuates that control. Id. at 433. Therefore, the ability to fashion that program and establish its basic constructs lies exclusively with the court. Here, the viability of a separate charge of escape is clear.

Our focus now shifts to defendant’s argument that ISP is, for all intents and purposes, parole or probation. Again, we agree with the State’s interpretation that “enumerated exceptions in a statute indicate legislative intent that the statute be applied in all cases not specifically excepted.” State v. Reed, 34 N.J. 554, 558 (1961). ISP is funded by the Legislature as a line item cost in the courts’ budget indicating that the Legislature is aware of the program and its operation. Five years have passed since the initiation of this program. To date, the Legislature has not included ISP in the list of exceptions to the escape provision of the Penal Code, N.J.S.A. 2C:29-5(a). Absent that, it is patently clear that ISP is fundamentally different from either probation or parole.

[261]*261Our courts have firmly established that a defendant on probation or parole is not entitled to have that time credited against his jail time should defendant violate or otherwise fail to complete the probationary term. Reyes, 207 N.J.Super. at 142. ISP on the other hand will credit all time served regardless of the reason for defendant’s rejection from the program.

Case law clearly establishes that flight from work release can support a separate charge of escape. State v. Walker, 131 N.J.Super. 547 (App.Div.1974). Upon admission into ISP defendant was removed from the work release program.

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Related

State v. Mastapeter
674 A.2d 1016 (New Jersey Superior Court App Division, 1996)
State v. Kyc
608 A.2d 1013 (New Jersey Superior Court App Division, 1992)
State v. Jiminez
571 A.2d 295 (Supreme Court of New Jersey, 1990)
State v. Clay
553 A.2d 1356 (New Jersey Superior Court App Division, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
551 A.2d 191, 229 N.J. Super. 256, 1988 N.J. Super. LEXIS 450, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-jiminez-njsuperctappdiv-1988.