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State v. Grant

Decided: July 18, 1968.


Conford, Labrecque and Halpern. The opinion of the court was delivered by Labrecque, J.A.D.


Defendant James Grant appeals from a judgment of conviction for assault and battery upon a law enforcement officer in violation of N.J.S. 2 A:90-4 and from the revised sentence imposed therefor.

The offense occurred on November 20, 1966 while defendant was serving a seven month sentence, commencing July 19, 1966, in the Essex County Penitentiary on charges of shoplifting, failure to have a narcotics registration card in his possession, and being under the influence of a narcotic drug. At the time of his arrest on the above charges, he was on parole from the New Jersey State Prison, having been convicted in January 1965 of breaking and entering and larceny. The State parole authorities filed a detainer against him shortly after his arrest.

On November 20, 1966, during the course of a riot in the mess hall of the Essex County Penitentiary, Everett Hannon, a correction officer on duty there, was allegedly assaulted by defendant and later knocked unconscious by other inmates, suffering a concussion and three broken teeth. Three days later, while still in the hospital, and after viewing some 50 pictures of prisoners, he identified a picture of defendant as that of one of his assailants. He again identified defendant at the trial.

While on duty in the mess hall, Hannon was wearing his official uniform and badge but was not armed. He and other correction officers were authorized to carry weapons only

when performing out-of-prison functions such as transporting prisoners to and from courts or hospitals or when guarding prisoners working outside the prison grounds. In addition to the above, his duties were, generally, to supervise prisoners and maintain order in the penitentiary.

Defendant first urges that an Essex County Penitentiary correction officer is not a "law enforcement officer" within the intendment of N.J.S. 2 A:90-4. The functions and responsibilities of correction officers performing the duties described above, are such that we are unable to agree with defendant's contention. Whether those performing such duties bear the title of jail guard, warden or correction officer, overseeing the custody and punishment of law violators is as much a part of law enforcement as undertaking the detection and apprehension of such violators. Moreover, they have the further duty of detecting and preventing violations of law by prisoners, e.g., assaults on other prisoners, escapes, etc., and in that sense are literally law enforcement officers. In certain counties (including Bergen) they are specifically vested by statute with all the power and authority of constables. See N.J.S.A. 30:8-18. It would be incongruous to hold that correction officers were law enforcement officers in Bergen, but not in Essex. We are satisfied that the Legislature intended to encompass within the scope of the statute those persons whose duty it is to supervise the administration of criminal punishment and to maintain security within and without the confines of the State's penal institutions. We find no basis in logic or reason for limiting the meaning of the term "law enforcement officer" to persons empowered by law to investigate, arrest and prosecute violators of the law, as urged by defendant. Cf. Caldaro v. Ferber, 39 N.J. 314 (1963); Bownes v. Meehan, 45 N.J.L. 189 (Sup. Ct. 1883).

Equally unconvincing and without merit is defendant's contention that the phrase "other law enforcement officer" in N.J.S. 2 A:90-4 is so vague and ambiguous as to render the statute unconstitutional. See United States v.

National Dairy Products Corp., 372 U.S. 29, 83 S. Ct. 594, 9 L. Ed. 2 d 561 (1963), rehearing denied 372 U.S. 961, 83 S. Ct. 1011, 10 L. Ed. 2 d 13 (1963).

Following his conviction, the court, on December 5, 1967, sentenced defendant to State Prison for a term of not less than three nor more than five years to run concurrently with the balance of any term to be served on a charge of violation of parole then pending against him. On January 5, 1968, following a letter to the court from the Department of Institutions and Agencies, the sentence was revised to delete that portion thereof which provided that the sentences were to be concurrent. Defendant challenges the revised sentence.

In deleting the provision making the sentence concurrent with the one to be served for violation of parole, the trial judge was motivated solely by the view that N.J.S.A. 30:4-123.27, to which his attention had been directed by the foregoing letter, precluding the imposition by ...

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