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Cain v. New Jersey State Parole Board

Decided: January 9, 1978.

DONALD CAIN, ANTHONY FABRO, DONALD LESPERANCE, ROBERT ROY RICHARDSON, APPELLANTS,
v.
NEW JERSEY STATE PAROLE BOARD, RESPONDENT



Lora, Seidman and Milmed.

Per Curiam

These consolidated appeals present another challenge on equal protection grounds to the state parole system as it affects inmates of county correctional institutions. Here, the single issue before us is whether an inmate of a county penitentiary or workhouse who has been sentenced*fn1 to two or more consecutive terms, each less than one year but in the aggregate greater than one year, has the right to be considered for parole by the State Parole Board after having served at least one year of the aggregate term.

Appellants were sentenced to the Mercer County Correction Center for consecutive terms after conviction of indictable offenses. Each term was for nine months. The aggregates of the terms imposed were: Donald Cain, 36

months; Anthony Fabro, 36 months; Donald Lesperance, 27 months; and Robert Roy Richardson, 18 months.*fn2 The State Parole Board declined to consider them for parole, relying specifically on N.J.S.A. 30:4-123.35*fn3 and Davis v. Heil , 132 N.J. Super. 283 (App. Div. 1975), aff'd 68 N.J. 423 (1975).

In Davis this court stated:

The extent to which N.J.S.A. 30:4-123.35 should apply to the aggregation procedures of N.J.S.A. 30:4-123.10 to county inmates is best determined by reference to the clear intent of the Legislature in providing parole for county inmates. Two limitations are apparent in the language quoted above. The Legislature intended that no county prisoner should be eligible for parole until he has been incarcerated for at least one year. Additionally, the greater than one-year sentence requirement limits parole eligibility only to those inmates whose sentences might have been served in State Prison. We agree with the view taken by the Attorney General in the advisory opinion cited above that the Legislature did not intend to make parole available to county inmates serving disorderly person sentences of six months, even where several such consecutive sentences have been imposed.

Consistent with the above analysis of N.J.S.A. 30:4-123.10 and 30:4-123.35, we conclude that inmates of county institutions sentenced to consecutive sentences where each sentence has a term of at least one year shall be eligible to apply for parole upon completion of the aggregated minimum sentence or one-third of the aggregated maximum term. In no case shall parole eligibility arise until the inmate has served at least one full year.

Computation of the aggregated sentence shall be according to N.J.S.A. 30:4-123.10, with the fixed term of the county sentence to be considered as both a minimum and maximum term. In the

present case the prisoner was sentenced to consecutive terms of 12 and 18 months. His aggregated term, both minimum and maximum, is 30 months. We recognize that a State Prison inmate with an aggregated maximum sentence of 30 months would be eligible for parole at a marginally earlier time than a similarly sentenced county inmate -- ten months as opposed to one year. This result is dictated by the clear requirement of N.J.S.A. 30:4-123.35 that county inmates serve at least one year before applying for parole. [132 N.J. Super. at 294-295; emphasis supplied]*fn4

Pointing out that "inmates in county institutions become eligible for parole consideration at a later date than inmates in state prison," appellants contend "that there is no rational basis for the difference in treatment accorded the two classes of inmates." They submit that

[ Royster Guano Co. v. Virginia , 253 U.S. 412, 415, 40 S. Ct. 560, 561, 64 L. Ed. 989, 990-991 (1920); ...


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