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State v. Fudali

Decided: February 23, 1971.


Goldmann, Leonard and Mountain. The opinion of the court was delivered by Goldmann, P.J.A.D.


Defendant appeals from a County Court order denying his petition for post-conviction relief seeking a reconsideration of sentence.

The Hudson County grand jury had returned three indictments charging defendant and two others, in four counts, with armed robbery and unarmed robbery, and also armed and unarmed assault with intent to steal. He pleaded guilty to the first counts of two of the indictments charging him with armed robbery and was sentenced on each indictment to State Prison terms of 4-6 years for robbery and 2-3 years for being armed. However, the sentences were made to run concurrently, the result being that defendant received a State Prison sentence of 6-9 years.

Defendant was on parole from the Bordentown Reformatory at the time of the sentences. His commitment there had resulted from his plea of guilty to armed robbery, for which he had been sentenced to serve an indeterminate term at Bordentown not to exceed five years. The time remaining on the Bordentown sentence at the time of his parole was

two years and eight months. On arrival at the State Prison defendant was informed that his parole from Bordentown had been revoked, that his remaining Bordentown sentence was being transferred to the State Prison, and that he would serve that sentence after he had completed the State Prison sentences just imposed for armed robbery.

The State Prison sentences were imposed on June 28, 1968. On August 5 following the chief executive officer at the Bordentown institution requested authority to transfer defendant to the State Prison, noting that the reformatory parole had been revoked on March 13, 1968 and that two years and eight months of the reformatory sentence remained to be served. The head of the Division of Correction and Parole, in regular course, approved the transfer and requested the Commissioner of Institutions and Agencies to enter an order of transfer. He did so, as authorized by N.J.S.A. 30:4-85.

One year later defendant filed his petition for post-conviction relief, claiming there had been a violation of N.J.S.A. 30:4-148. That statute provides that courts, in sentencing to the reformatory, shall not fix the duration of sentence, but the time which any person shall serve in the reformatory or on parole shall not in any case exceed five years or the maximum term provided by law for the crime for which the prisoner was convicted and sentenced, where such maximum is less than five years. Further, the term may be terminated by the reformatory board of managers in accordance with rules and regulations formally adopted. The same judge who had accepted defendant's plea and imposed the State Prison sentences treated the petition as one for reconsideration of sentence and denied the application. This appeal ensued, and we granted the Commissioner of Institutions and Agencies leave to intervene.

Defendant's main argument is that the Bordentown Reformatory sentence remaining to be served should run concurrently with the State Prison sentences. This argument is divided into two parts, the first dealing with the Commissioner's

power under N.J.S.A. 30:4-85, and the second with the legislative philosophy of rehabilitation and what the judiciary's attitude toward it should be.

N.J.S.A. 30:4-85 provides that "Any inmate of any correctional institution * * * may be transferred to any other such correctional institution by order of the commissioner directing such transfer, either upon the application of the chief executive officer or upon the initiative of the commissioner." The statute further provides that any inmate of a correctional institution for males, of the age of 18, may be transferred to the State Prison if it shall appear to the satisfaction of the Commissioner after recommendation by a special classification review board that such inmate cannot properly be confined in such institution and that his transfer will operate for the general benefit and welfare of the inmate population of the institution from which he is to be transferred.

Defendant's transfer was regular in all respects. The Bordentown chief executive officer had requested it, the Division of Correction and Parole had approved it, and the Commissioner, acting well within the discretionary ...

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