For affirmance -- Chief Justice Weintraub and Justices Francis, Hall and Haneman. For reversal -- Justices Jacobs, Proctor, and Schettino. The opinion of the court was delivered by Francis, J. Weintraub, C.J. (concurring). Proctor, J. (dissenting). Jacobs and Schettino, JJ., join in this dissent.
[54 NJ Page 316] On this appeal defendant Lavelle attacks as excessive a sentence imposed upon him of three to five years in State Prison and a fine of $1,000. With respect to the fine the trial court's direction was that he stand committed until it was paid. He challenges also the ruling of the State Parole Board denying him street parole until he either paid the $1,000 fine or worked it off in continued confinement at the rate of $5 a day. The Appellate Division affirmed the sentence unanimously and the Parole Board
order by a divided vote.*fn1 Judge Conford in his dissent would remand that part of the case to the trial court for a hearing on the prisoner's indigency. In his view, if such hearing resulted in a finding of indigency, the Parole Board should be directed to parole Lavelle on appropriate conditions for payment of the fine in installments. Appeal was taken to this Court on the basis of the dissent. R.R. 1:2-1(b).
On September 30, 1966 defendant pleaded guilty in the Union County Court to an indictment charging him with possession of marijuana in violation of N.J.S.A. 24:18-4. The offense is a high misdemeanor punishable in the case of a first offender by a mandatory fine not exceeding $2,000, and by imprisonment, with hard labor, for a term of not less than two years nor more than 15 years. N.J.S.A. 24:18-47(c)(1). On October 21, 1966 when Lavelle appeared for sentence, he made a personal plea for leniency, saying that he had "kicked" the habit of smoking marijuana, and if given another chance he would find regular employment and rehabilitate himself. Being impressed the court imposed a sentence of two to three years in prison and a fine of $250 but suspended the sentence and placed him on probation for three years, during which period he was to pay the fine at the rate of $5 a week.
Less than two months later Lavelle was convicted in the Elizabeth Municipal Court of unlawful use of heroin. He was sentenced to the county jail for six months, but shortly thereafter he was again able to persuade the court to be lenient. Consequently the sentence was suspended and a year's probation was ordered. In granting probation the magistrate gave him an opportunity to rehabilitate himself by undergoing a course of treatment at St. Dismas Center for Drug Addiction in Paterson, N.J. He was ordered to remain there until discharged. Instead, on June 19, 1967
he left without permission and before discharge. The Director, Monsignor William Wall, advised the county judge that defendant made "little effort toward rehabilitation," and that he needed "a shock to realize the seriousness of his problem."
After leaving St. Dismas defendant was instructed to take out-patient treatment at the Union County Narcotics Clinic. On September 12, 1967 its Director advised that in spite of "every effort toward rehabilitation * * * is evident Lavelle is not motivated toward any type of treatment."
Just two months later, on November 14, 1967, Lavelle was convicted of fraud in the same municipal court. He was fined $100, ordered to make restitution, and again put on probation for one year.
In addition it appeared that he had failed to make the regular $5 weekly payments on the original fine in the county court. At the end of the first year of probation he had made only five weekly payments and still owed $225.
The performance described caught up with him and he was ordered to show cause why the county court probation should not be revoked. On December 8, 1967 the original sentencing judge conducted a revocation hearing, at which Lavelle pleaded guilty to violation of probation, and again sought clemency.
It is obvious from the colloquy between the court and Lavelle and the latter's renewed plea for continuance of probation, that he is an intelligent person and that he had a thorough understanding of the conditions of his probation. This time the judge was not impressed. He felt a very fair chance at rehabilitation had been given and willfully ignored by Lavelle, who no longer could be relied upon to live within the probation conditions or to pay the balance of his $250 fine in weekly installments. Consequently probation was revoked, the original suspended sentence was vacated, and a new sentence of three to five years in State Prison (with credit for the time already spent in confinement) and a fine of $1,000 was imposed. Obviously mindful of Lavelle's past performance, the judge expressly ordered that he remain
committed until the fine was paid. With respect to this sentence it should be noted under N.J.S. 2 A:168-4 that upon finding the terms of probation have been violated, the court "may cause the sentence [originally] imposed to be executed or impose any sentence which might originally have been imposed." This replacement sentence was well within the penalty of two to 15 years and fine not exceeding $2,000 authorized by N.J.S.A. 24:18-47(c)(1) for the crime of possession of marijuana.
The Appellate Division unanimously rejected the claim that this sentence was excessive. We concur in that view and see no need for further discussion of the matter.
While the appeal was pending in the Appellate Division, defendant, having served sufficient time to make him eligible for parole consideration (i.e., the minimum or one-third of the maximum term less good behavior and work credits (N.J.S.A. 30:4-123.10)), presented an application to the Parole Board. The Board granted parole from the fixed imprisonment part of the sentence to be effective on January 7, 1969, but subject to the condition that if he was unable to pay the $1,000 fine portion thereof, he would have to work it off in the institution at the rate of $5 a day. Since defendant was indigent and therefore unable to pay the fine, on January 9 he went on so-called cell parole and began to amortize it at $5 a day. The $5 rate of credit is fixed by N.J.S. 2 A:166-16,*fn2 which further provides that ...