Handler, Meanor and Kole. The opinion of the court was delivered by Meanor, J.A.D.
Following pleas of guilty, Leopoldo Bonilla was, on May 3, 1973, sentenced to concurrent terms of 12 months in the Hudson County Penitentiary for atrocious assault and battery, N.J.S.A. 2A:90-1, and possession of a dangerous weapon, N.J.S.A. 2A:151-41.*fn1 His attorneys requested the State Parole Board to consider Mr. Bonilla for parole upon the expiration of one-third of his sentence. The Parole Board declined the request by letter dated July 9, 1973 on the ground that a county penitentiary inmate under a 12-month sentence is not eligible for parole. Conceiving this denial to be final state agency action from which an appeal will lie, R. 2:2-3(a), Bonilla filed this appeal. The precise issue centers upon his contention that denial of parole eligibility to him as a county penitentiary inmate while extending parole to those confined within the state prison system constitutes a deprivation of equal protection.
New Jersey's system for incarceration and parole of the adult offender is an intricate one that has grown historically and not completely logically. A court about to sentence an adult convicted of crime -- a misdemeanor or high misdemeanor and not a petty offense -- may have alternatives.
A male defendant under age 30, not previously a state prison inmate, convicted of a crime punishable by a sentence to State Prison, may instead be sentenced to an indeterminate
term at the Youth Correctional Institution Complex. N.J.S.A. 30:4-147.*fn2 Parole from such sentences is under the control of the Board of Trustees of that institution, N.J.S.A. 30:4-148; 30:4-106; 30:4-1.1(n), and such release may occur at any time.
Adult female offenders may be sentenced to the Correctional Institution for Women if convicted of a crime for which a State Prison sentence could be imposed if the offender were male. N.J.S.A. 30:4-154. N.J.S.A. 30:4-155 requires that all sentences to the Correctional Institution for Women be for an indeterminate term except following convictions for murder or manslaughter, for which minimum and maximum terms are imposed as in the case of males. The statutory plan has been altered by State v. Chambers, 63 N.J. 287 (1973), in order to afford sentencing equality between men and women. By virtue of that decision, females age 30 and over must be given minimum-maximum terms if sentenced to the Correctional Institution for Women, and if under 30 the sentencing court must determine whether defendant, if male, would be given an indeterminate reformatory term or a minimum-maximum State prison sentence and enter judgment accordingly. Before State v. Chambers, supra, all parole from the Correctional Institution for Women, except for those sentenced for murder or manslaughter, rested with its Board of Trustees. N.J.S.A. 30:4-1.1(n). Parole power continues in the Board of Trustees as to indeterminate terms, but parole for all women sentenced to minimum-maximum terms now resides with the State Parole Board, N.J.S.A. 30:4-123.5. Parole of a female prisoner sentenced to an indeterminate term may take place at any time.
All sentences, except for life, to the New Jersey State Prison must carry a minimum and a maximum term. The minimum must be at least one year and the maximum may not be in excess of the maximum prescribed by law for the offense in question. N.J.S.A. 2A:164-17. Parole for all prisoners, male and female, confined under minimum-maximum terms is within the jurisdiction of the State Parole Board. N.J.S.A. 30:4-123.5.
The earliest eligibility for parole by the State Parole Board occurs upon expiration of the minimum or one-third of the maximum sentence, whichever arrives first. These are adjusted terms, since work and good behavior credits are given thus enhancing parole eligibility. N.J.S.A. 30:4-123.10. This parole eligibility is available only to first offenders. Second offenders are not eligible until they have served an adjusted one-half of the maximum; third offenders must serve two-thirds of the maximum, and fourth offenders four-fifths before parole eligibility occurs. N.J.S.A. 30:4-123.12. Under this statute a multiple offender is one who has previously been sentenced and confined to a penal institution as defined therein as follows:
As used in this section "penal institution" means and includes the New Jersey State Prison and any other State penal or correctional institution in this State to which offenders are sentenced for fixed terms or fixed minimum and maximum terms and other institutions of like character under the jurisdiction of the United States or of a State or States other than this State.
The only "fixed term" sentence permitted within the state prison system is a life sentence. N.J.S.A. 2A:164-17. See State v. Hampton, 61 N.J. 250, 276 (1972).
New Jersey's penal system for adults also includes three different institutions under county aegis. These are jails, workhouses and penitentiaries. Each of the 21 counties has a jail. A few have workhouses. Essex and Hudson have no workhouses but are the only counties to have penitentiaries.
Sentences to these institutions are for a definite term without a minimum and maximum. N.J.S.A. 2A:164-15 requires
that all sentences for a term less than one year be to the county jail, workhouse or penitentiary. However, in first class counties (Essex, Hudson and Bergen), county jail sentences may not exceed six months.*fn3 In other counties, jail sentences must be for less than one year.
In counties having a penitentiary, sentences from one year to 18 months must be to that institution, unless the offender has previously served in State Prison in which event the court may choose the prison rather than the county penitentiary. Eighteen months is the ...