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In re Application of Henry Zienowicz

Decided: March 7, 1951.

IN THE MATTER OF THE APPLICATION OF HENRY ZIENOWICZ FOR ISSUANCE OF WRIT OF HABEAS CORPUS


On writ of habeas corpus.

Hughes, J.c.c.

Hughes

On the representation that he is illegally confined in the New Jersey State Prison, there was issued to the petitioner, Henry Zienowicz, the writ of habeas corpus under the authority of R.S. 2:82-1. On the return of the writ, testimony was taken and argument heard, resulting in the following factual showing:

On July 1, 1938, in the former Court of Quarter Sessions of Middlesex County, the petitioner, on his plea of non vult to an indictment for robbery (R.S. 2:166-1), was sentenced to serve an "institutional" term of imprisonment at the New Jersey Reformatory at Annandale. This type of sentence has no fixed minimum and the maximum term thereof corresponds to the statutory maximum term of imprisonment for the particular crime for which sentence is imposed (R.S. 30:4-152),*fn1 which, in the case of robbery, was and is 15 years. R.S. 2:166-1. On July 28, 1939, pursuant to its authority under R.S. 30:4-152, the board of managers of such reformatory paroled petitioner, i.e. , terminated the term of service, placing him at liberty under parole supervision for the unserved period of the maximum term aforesaid.

Thereafter and in November, 1942, petitioner, on conviction in the federal court for violation of the National Motor Vehicle Theft Act, was sentenced to serve three years in the custody of the United States Attorney General and was committed to the federal prison at Lewisburg, Pennsylvania. Although the New Jersey authorities filed a detainer against petitioner at Lewisburg, they later withdrew it and took no action to revoke

the parole previously granted him from the Annandale sentence. He was conditionally released from Lewisburg on April 9, 1945, and such conditions were fulfilled by him on December 23, 1945. Upon his release from Lewisburg, petitioner returned to New Jersey and parole supervision by the New Jersey authorities continued to be exercised over him. Petitioner was thereafter and in February, 1946, convicted of the crime of larceny of motor vehicle in the appropriate court in Union County and was sentenced to the New Jersey State Prison for a minimum and maximum term of three years.

On the latter sentence, he was received in said prison on February 21, 1946, and, not being paroled on such sentence, served the maximum term thereof, which, after credit to him of commutation time credits uniformly available to prisoners committed to such prison, under R.S. 30:4-140, expired on March 29, 1948. Meanwhile, and on April 22, 1947, as a result of his said conviction in Union County, the board of managers of the reformatory at Annandale, pursuant to its authority under R.S. 30:4-111, revoked the parole previously granted by it, at which time, according to the return to the writ, which was not traversed in this cause, there remained unserved against the maximum of the original Annandale sentence of 1938 a total of six years, four months and four days. Upon such parole being revoked, the Commissioner of the Department of Institutions and Agencies of New Jersey, pursuant to the authority vested in him by R.S. 30:4-85, as amended, ordered the transfer of the remaining portion of the maximum term of petitioner from Annandale, to be served at the New Jersey State Prison.

Petitioner was born on March 8, 1916, and thus was 22 years of age when originally committed to Annandale, 31 years of age when his parole from Annandale was revoked, as aforesaid, and is presently about 35 years of age, these details being material to one of his contentions, which will be mentioned hereafter.

In this field of evidence there is no substantial conflict of fact, but it forms the basis for petitioner's claim that he is presently unlawfully detained. In support of this contention,

he makes the following fundamental propositions going to the validity of such confinement.

First, that the parole authorities irrevocably lost jurisdiction of his person by their relinquishment of their parole warrant filed as a detainer against him at Lewisburg. There is no evidence as to the reasons underlying the decision not to seek revocation of parole at this time by reason of the mentioned conviction in the federal court. On the basis of such conviction, the board clearly had the right to revoke the parole. R.S. 30:4-111. Quaere: Does the failure to exercise such right of revocation at a particular time and by reason of a particular breach of condition, of which the board is on notice, have the effect in law of a final discharge of petitioner from parole supervision or sanctions? There is no doubt, nor issue in this case, that the normal period of parole supervision corresponded, at the outset, to the maximum period of the sentence imposed, namely, 15 years from the date of imposition of such sentence on July 1, 1938, less any uniform commutation time credits for work assignments to which the parolee might become entitled. The statute prescribes a method for the shortening of this period of parole for prisoners sentenced to institutional terms as distinguished from minimum-maximum terms, by the issuance by the board of managers of the reformatory of a final discharge from custody ("custody" here referring not to physical imprisonment, but to the constructive custodial power implied in the parole relationship. R.S. 30:4-110). In granting the power to issue this final discharge, the Legislature has left its use to the discretion of the board, keyed to the interim conduct of the parolee and the consequent apparent compatibility of such discharge with the welfare of society. R.S. 30:4-113, as amended L. 1948, c. ...


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