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Mallamaci v. Dietz

Decided: December 21, 1976.


Matthews, Seidman and Horn.

Per Curiam

This is an appeal from an adverse determination of the New Jersey State Parole Board which denied petitioner parole. Because of the involved factual situation, we deem it necessary to set forth those facts with some particularity.

Petitioner is serving an aggregate term of confinement of from 10 to 11 years.*fn1 He first appeared for parole consideration on March 4, 1975. The Parole Board deferred decision pending clarification of his offender status. On September 4, 1975 the Board issued a "Notice of Decision" in

which it (1) denied his application for parole, (2) classified him as a multiple offender by reason of a prior conviction and sentence in the State of New York for the crime of manslaughter, N.J.S.A. 30:4-123.12(a)(3), and (3) scheduled him for a new parole hearing when eligible as a second offender. The classification department at the State Prison, Leesburg, then calculated petitioner's parole eligibility date as a second offender to be December 22, 1975. This computation included allowances for 492 days in commutation credit, N.J.S.A. 30:4-140; 225 days in estimated work credits, N.J.S.A. 30:4-92, and 161 days in estimated minimum security credits, N.J.S.A. 30:4-92. Petitioner again appeared for parole consideration in November 1975. In a "Notice of Decision" dated November 3, 4 and 5, 1975, the Board granted conditional liberty to petitioner, effective December 23, 1975, on condition that he make regular weekly payments of $10 to the Burlington County Probation Department until such time as he fully extinguished his liability for the outstanding fines. On December 9, 1975 petitioner agreed to the terms and limitations annexed to the parole certificate, and he was subsequently released from confinement on December 23, 1975.

After leaving prison petitioner went home and lived with his mother in Paterson. His mother died during the spring of 1976 and, as a result, his plans to get married were put off. He subsequently married on June 19, 1976 at St. Michaels Monastery, Union City, and he received permission from the Board to take a brief honeymoon in Canada. Upon returning he and his wife took up residence in North Bergen and petitioner continued working for S & E Construction Co. in Paterson.

Petitioner made every weekly payment to the Burlington County Probation Department and otherwise performed in accord with his parole conditions.

On July 16, 1976 the chairman of the Parole Board informed the superintendent of the State Prison at Leesburg that petitioner had been prematurely and erroneously released

from confinement. Investigation by the Board's staff disclosed that (1) in the parole eligibility calculation appellant had been afforded work and minimum security credits in excess of his actual earnings of same, and (2) the calculation was also invalid due to mathematical error. On July 19, 1976 the superintendent issued an order for petitioner's arrest. The warrant was executed on July 22, 1976 and petitioner was summarily returned to Leesburg.

Petitioner filed a timely notice of appeal seeking review of "an action of the State Parole Board on July 22, 1976 revoking the parole * * * granted on December 23, 1975." Petitioner also applied for temporary emergent relief (R. 2:9-8) which was denied with the direction that the Board conduct a plenary hearing to determine petitioner's actual parole eligibility date.

After a hearing held on August 10, 1976 the hearing officer filed a report on August 13, 1976, concluding on the basis of testimonial and documentary evidence presented that, as of December 22, 1975, petitioner's actual parole eligibility date was September 10, 1976. On August 24, 1976 the State Parole Board adopted the hearing officer's findings of fact and conclusions of law, and a new parole hearing was scheduled for September 7, 1976. Before that hearing took place the Board requested the Attorney General to render an opinion as to whether petitioner should be given credit for the seven months he had spent on the street before being returned to Leesburg in July 1976. The opinion given pursuant to that request recommended that the seven months credit be given, as long as petitioner had nothing to do with miscalculations. (Op. A.G. M76-2833, dated August 23, 1976.)

Thereafter, an additional investigation was requested by the Board to ascertain whether petitioner had committed any type of illegal act or perpetrated any fraud on the Parole Board prior to his initial parole in December 1975. That investigation, which was ...

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