Clapp, Goldmann and Ewart. The opinion of the court was delivered by Goldmann, J.A.D.
[29 NJSuper Page 81] Di Miceli, now confined in State Prison, appeals under R.R. 4:88-8 from a decision of the
State Parole Board classifying him as a third offender and holding that as such he is not eligible for parole until he has served three-fourths of his maximum term less time off for work credits, no credit being given for commutation (good behavior) time.
On September 9, 1940 Di Miceli was convicted on four counts for robbery, and received four sentences of five to seven years in State Prison, to run consecutively. He also was convicted of carrying concealed weapons and given a sentence of one to two years, to run consecutively to the four sentences. Upon arriving at the State Prison in 1940, Di Miceli was classified as a third offender in accordance with L. 1936, c. 194, on the basis of having served two terms in the State Prison at Ossining, New York prior to his New Jersey sentences. It appears that he was sent to Sing Sing on March 17, 1926 to serve a five- to seven-year sentence for robbery. Paroled in 1929, he subsequently, on November 28, 1930, was received at the same prison on a conviction of attempted robbery carrying a sentence of five years. It thus appears that he had previously served all or part of two sentences in a penal institution of state prison character in another state and so was subject to L. 1936, c. 194, § 2 (R.S. 30:4-106.2) which provided that:
"Any offender sentenced to any penal institution in this state and who has previously served two terms in any penal institution of the United States, in this state, or any other state of the United States, shall be deemed a third offender, and upon his incarceration shall be ineligible for parole unless he shall have served at least three-fourths of the maximum sentence so imposed."
The correctness of this previous prison record has never been challenged, nor is it now.
Di Miceli argues that having been sentenced on September 9, 1940, he is not subject to L. 1940, c. 219, amending R.S. 2:103-7, 9 and 10, effective November 19, 1940. That statute has no application; Di Miceli was clearly subject to the terms of the 1936 act upon his arrival at the New Jersey State Prison.
The prisoner first argues that his classification as a third offender to establish parole eligibility violates his constitutional rights. The classification of an inmate as a multiple offender for the purpose of establishing parole eligibility involves no consideration of due process. Zink v. Lear , 28 N.J. Super. 515 (App. Div. 1953); White v. Parole Board , 17 N.J. Super. 580 (App. Div. 1952). Di Miceli contends that the White case has no application to his situation because it deals with L. 1948, c. 84, § 12 as amended (N.J.S.A. 30:4-123.12), enacted subsequent to his conviction. That argument is without merit, for the same principle of constitutional law is involved. What he overlooks is that L. 1936, c. 194, § 2 (R.S. 30:4-106.2), the former parole statute relating to multiple offenders, was in existence at the time of his conviction and sentence; as has been noted, it provided that a third offender was ineligible for parole consideration until he had served three-quarters of the maximum sentence imposed. The former Supreme Court, in discussing R.S. 30:4-106.2 in In re Huyler , 133 N.J.L. 171, 173, 176 (1945) said:
"It is basic in the statutory scheme here that a third offender shall be ineligible for parole by the prison board of managers unless he shall have served 'at least' three-fourths of the maximum sentence imposed.
"Comparing the related sections of the Revision, there is a conspicuous [legislative] policy to provide an incentive for reformation by imposing penalties for recidivism. The first offender and the unregenerate criminal are placed on different levels. There are readily understandable grounds for this policy."
Di Miceli alleges that the court in sentencing him considered him a first offender. In his appendix he reproduces a letter from the sentencing judge which states that the records in the prosecutor's office indicate that the prisoner was sentenced on individual accusations made against him and was not treated as a third offender. That does not change the aspect of the case; the legislative mandate operates whether ...