Lynch, Milmed and Antell. The opinion of the court was delivered by Lynch, P.J.A.D.
Leonard O'Neal appeals from the decision of the New Jersey State Parole Board (Board) whereby it rescinded a parole release date which it had given him while he was an inmate in Rahway State Prison. The ground of the rescission was that, as he awaited release and while resident at a "half-way house" in Newark, he was indicted for participating in an armed robbery in that city.
The central legal issue here is to what extent a prisoner, who has been advised of a parole date in futuro , is entitled
to due process protections in a proceeding to rescind that date prior to actual release (hereafter termed a "rescission" proceeding). In more specific terms, the question in this case is whether in a hearing in such a proceeding the inmate is entitled to confrontation and cross-examination of witnesses against him, one of the due process protections guaranteed to a parolee in a parole revocation proceeding by the decision in Morrissey v. Brewer , 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). Appellant relies not only upon Morrissey in support of his contention that he be confronted with the witnesses against him, but also upon the decision of our Supreme Court in Avant v. Clifford , 67 N.J. 496 (1975).
Respondent Board contends that the Morrissey protections are not appropriate to a rescission proceeding and that in this context Avant does not have the significance which appellant would ascribe to it. The Board contends that the governmental function involved in a rescission proceeding is akin to that in a decision to grant or deny parole in the first instance and therefore no greater due process protections are to be afforded in rescission than those set forth in Monks v. N.J. State Parole Board , 58 N.J. 238 (1971), with respect to granting or denying parole. Alternatively, the Board contends that a rescission proceeding is analogous to a prison disciplinary proceeding because in both instances the inmate is still confined and the potential loss of freedom which generates the need for the Morrissey rights in revocation proceedings is not present. Therefore, the Board argues that, at best, an inmate in a rescission proceeding should be afforded no greater due process protections than those established for a disciplinary proceeding in Wolff v. O'Donnell , 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974), and Baxter v. Palmigiano , 425 U.S. 308, 96 S. Ct. 1551, 47 L. Ed. 2d 810 (1976). Wolff and Baxter , unlike Morrissey , do not afford the inmate the right of confrontation of the witnesses against him. In fact,
they expressly assert the inappropriateness of such right in a disciplinary proceeding.
The issue before us generated from the following facts. Appellant was confined in Rahway State Prison serving a 5-7-year term imposed upon him as a result of a conviction for robbery. In May 1975 the Board granted him a parole release date of November 18, 1975. While awaiting release O'Neal was transferred from the prison to a "half-way" facility, Newark House. During his residence there he commuted to a job during the day and was free to visit his family and friends in the evenings. In September 1975 an armed robbery occurred near Newark House and O'Neal was arrested and charged with the crime. The arrest was based upon photographic identifications of O'Neal by two eyewitnesses to the robbery. As a result of the identifications O'Neal was transferred back to Rahway State Prison.
Prior to indictment on the robbery charge a final rescission hearing (for the purpose of rescinding O'Neal's parole date) was conducted on November 17, 1975. The hearing officer admitted into evidence police reports recounting the eyewitness identifications of O'Neal. O'Neal was advised of his right to remain silent. He denied his involvement in the commission of the offense, essentially asserting an alibi defense. He requested that any witness who identified him through a photo be called to testify in person and reaffirm his identification while confronting him in person. His request for such confrontation was not granted. Thus the issue herein.
O'Neal was indicted for the robbery offense on November 26, 1975, and on December 1, 1975 the Board rescinded the release date which had previously been given him. The rescission was based upon the photographic identifications to which the police reports referred and his subsequent indictment. The Board informed O'Neal that it "was no longer of the opinion that there is a reasonable probability that you would assume a proper place in society without violation of the law. The State Parole Board is of
the opinion that your release, at this time, would be incompatible with the welfare of society." This is the standard applied in determining whether parole should be granted in the first instance. N.J.S.A. 30:4-123.14.
Subsequent to the filing of this appeal O'Neal was acquitted of the charge of robbery, was granted a new parole date, and was released on September 21, 1976. The Board's motion to dismiss the appeal for mootness was denied. Cf. State v. Dalonges , 64 N.J. 9 (1973);*fn1 Youth Correctional Center Bd. of Trustees v. Davis , 147 N.J. Super. 540 (1977).
Turning to the due process problem herein, the reported decisions on the constitutional rights mandated for a rescission hearing reach varying results. Some hold that none of the constitutional protections are appropriate. See McIntosh v. Woodward , 514 F.2d 95, 96 (5 Cir. 1975); Sexton v. Wise , 494 F.2d 1176, 1178 (5 Cir. 1974); Clifford v. Beto , 464 F.2d 1191, 1193 (5 Cir. 1972); Koptik v. Chappell , 116 U.S. App. D.C. 122, 321 F.2d 388, 392 (D.C. Cir. 1963); United States ex rel. Felder v. U.S. Bd. of Parole , 307 F. Supp. 159 (D. Conn. 1969); Temple v. Smith , 548 P. 2d 1274 (Utah Sup. Ct. 1976); State ex rel. Van Curen v. Ohio Adult Parole Auth. , 45 Ohio St. 2d 298, 345 N.E. 2d 75 (Sup. Ct. 1976); Bailleaux v. Cupp , 16 Or. App. 573, 520 P. 2d 483, 486 (Ct. App. 1974); Williams v. New Mex. Dept. of Corrections , 84 N.M. 421, 504 P. 2d 631, 633 (Sup. Ct. 1972). Others apply to rescission hearings the same due process rights as guaranteed in Morrissey v. Brewer, supra , with ...