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State v. State Parole Board

Decided: January 22, 1959.

THE STATE OF NEW JERSEY, EX REL. RALPH L. KINCAID, APPELLANT,
v.
STATE PAROLE BOARD, HAROLD J. ASHBY, CHAIRMAN, RESPONDENT



Conford, Freund and Haneman. The opinion of the court was delivered by Conford, J.A.D.

Conford

This is an appeal from the decision of the State Parole Board that the appellant should not be given credit for time spent out of jail on parole (commonly called "street time") or time spent in service of a sentence for a subsequent offense, in connection with a revocation of the appellant's parole.

The prisoner was originally convicted for possessing and selling illicit alcoholic beverages on May 22, 1956 and sentenced by the Law Division, Atlantic County, to State Prison for a term of one to three years. On January 15, 1957 he was granted parole, same to become effective June 10, 1957 and he was released on the latter date. On November 20, 1957 he was apprehended, while on parole, for again possessing and selling illicit alcoholic beverages and committed to the Atlantic County jail. On the same day the prisoner was declared to be delinquent on parole. On December 27, 1957 the Parole Board revoked the parole because of the said arrest and for appellant's associating with another individual known to be a violator of the Alcoholic Tax Unit regulations.

The prisoner pleaded nolo contendere and was thereupon sentenced to the county jail of Atlantic County for a period of four months, the court specifying that the confinement from November 20, 1957 to March 20, 1958 be credited as service of the sentence.

On March 25, 1958 the prisoner was returned to the State Prison as a parole violator, and the State Parole Board declared, after a hearing, that he should serve the balance of time remaining on the original sentence, same to be computed from the date of his release on parole. A subsequent application by the prisoner for reconsideration and

for allowance of his street time as a credit was denied by the Board.

The first question requiring determination is whether this appellant's case is controlled by the amendment of N.J.S.A. 30:4-123.24 effected by L. 1957, c. 28, or whether by the statute as it previously stood. As it now stands, so far as is here material, it reads as follows:

" N.J.S.A. 30:4-123.24. A prisoner, whose parole has been revoked because of * * * commission of an offense which subsequently results in conviction of a crime committed while on parole, even though such conviction be subsequent to the date of revocation of parole, shall be required, unless sooner reparoled by the board, to serve the balance of time due on his sentence to be computed from the date of his original release on parole."

Previously the terms of the statute were such that in order to require the prisoner to serve the entire balance of time from the date of his original release on parole it must have been shown that his parole was revoked "because of a conviction of a crime committed while on parole." L. 1948, c. 84, ยง 24. Thus, where the parole was revoked after the offense was committed but before conviction, the foregoing provisions of the statute did not by its terms apply and the balance of time to be served was computed as of the date of declaration of delinquency on parole (same statutory section). Under the 1957 amendment, however, in those cases in which it is properly applicable, revocation of parole for commission of a crime requires that the parolee serve the balance of his original sentence from the date of release on parole, even though conviction of the crime does not occur until after revocation of parole.

Thus, if this amendment is properly applicable to the prisoner in the present case, he has no basis to attack the denial to him of street time credit on the balance of the term he is to serve.

The appellant contends that the 1957 amendment is not applicable to this case because it did not become effective until April 29, 1957, which was subsequent to the date of declaration of ...


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