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New Jersey State Parole Board v. Boulden

New Jersey Superior Court, Appellate Division


Decided: February 27, 1978.

NEW JERSEY STATE PAROLE BOARD, PLAINTIFF-RESPONDENT,
v.
ELTEE BOULDEN, DEFENDANT-APPELLANT

Allcorn, Morgan and Horn. The opinion of the court was delivered by Allcorn, P.J.A.D.

Allcorn

[156 NJSuper Page 495]

Defendant was convicted of murder and, on April 8, 1971, was sentenced to State Prison for a term of 10 to 12 years.

On December 9, 1975 defendant was paroled. Thereafter, he was charged with and found guilty of a violation of parole. His parole was revoked on September 7, 1976, after

[156 NJSuper Page 496]

hearing, and he was reincarcerated. A notice of appeal from said parole revocation was filed October 25, 1976, the appeal being founded upon the asserted failure of the revocation hearing "to comport with minimal due process standards." During the pendency of the appeal in this court, the defendant was reparoled (June 1977); that parole terminated on September 21, 1977, with the expiration of his adjusted maximum sentence.

With the completion of his adjusted maximum sentence and the termination of parole supervision, defendant has satisfied any criminal obligation owing by him to the State of New Jersey on account of such offense. He has been fully discharged. In these circumstances, it is manifest that defendant has no cognizable interest in reviewing the action of the Parole Board in revoking his parole. The issue raised by this appeal thus has been mooted.

It is suggested, however, that defendant does have an interest sufficient to maintain the appeal because he may be "subsequently caught up once more in" criminal proceedings, and thus should be "entitled to proceed through that process, including sentencing and future parole release applications, unprejudiced by an improperly founded prior parole revocation." Board of Trustees of Youth Correctional Center v. Davis , 147 N.J. Super. 540, 543-544 (App. Div. 1977). In short, the hypothesis is that parole revocation constitutes a stigma or blemish on the defendant's record which, if unwarranted, he is entitled to have removed.

The concern so manifested in Davis rests completely upon chance: First, that defendant may again find himself in difficulty with the criminal law; and, second, that if he does, the record of his earlier parole revocation may come to the attention of the sentencing judge or Parole Board and somehow, some way, adversely affect him. Neither does it take into account the countervailing public interest.

There is little doubt that, in New Jersey, when a person has been convicted of a criminal or quasi -criminal offense, such conviction and the record thereof represents a stigma

[156 NJSuper Page 497]

in the real sense of the term. In consequence, our courts have held that the intervening service of the sentence or the payment of the fine imposed on the conviction -- or even the death of defendant himself -- pending appeal, does not moot appellate review and determination of the propriety of that conviction. This, because of the collateral legal disadvantages, civil disabilities or the public stigma which attend upon or attach to a person as a result of such conviction and the record thereof. It seriously affects his reputation and economic opportunities. Newark v. Pulverman , 12 N.J. 105, 115-116 (1953); Bower v. State , 135 N.J.L. 564, 568 (Sup. Ct. 1947); U.S. v. Washington , 341 F.2d 277 (3 Cir. 1965). See, generally, Annotation, "When criminal case becomes moot so as to preclude review of or attack on conviction or sentence," 9 A.L.R. 3d 462 (1966). In such circumstances, appellate review has a very real and meaningful purpose.*fn1

The same may hardly be said for appellate review of a parole revocation, once the sentence has been completely executed and defendant unconditionally released. Such a review is little more than a meaningless exercise on a matter of complete insignificance. The courts and the public are already sufficiently burdened with the litigation of meaningful matters of substance without having to hear and to decide matters so insubstantial and frivolous. Too, the public has a right to be free of the burden of the exercise of litigating such trivia. For it is the public which is called upon to finance most, if not all, of the cost of such matters through the Public Defender, as in the instant case.

[156 NJSuper Page 498]

Research of counsel and the court discloses few jurisdictions in the United States in which an appellate tribunal has subscribed to the view recently espoused by Davis, supra.*fn2 Whether dealing with revocation of parole or with denial of parole, almost all adhere to the contrary view, which was well expressed in Bennett v. State , 289 A.2d 28 (Me. Sup. Jud. Ct. 1972):

We hold that any possible collateral consequence which may stem from a record of revocation of parole, such, as claimed, that it might influence a sentencing judge on a subsequent conviction of crime or the parole board in the administration of a future parole, is so minimal, conjectural and insubstantial, in comparison with the State interest to bring litigation to an end, that it does not justify making it an exception to the rule that courts will not decide moot questions or abstract propositions. [at 32]

See, also Weinstein v. Bradford , 423 U.S. 147, 149, 96 S. Ct. 347, 46 L. Ed. 2d 350 (1975); Bowers v. U.S. Bd.

[156 NJSuper Page 499]

of Parole , 544 F.2d 898, 899 (5 Cir. 1977); Berkley v. Benson , 531 F.2d 837, 838 (7 Cir. 1976); United States Board of Parole v. Merhige , 487 F.2d 25, 28 (4 Cir. 1973), cert. den. 417 U.S. 918, 94 S. Ct. 2625, 41 L. Ed. 2d 224 (1974); Weiss v. United States Parole Bd. , 451 F.2d 1346 (5 Cir. 1971); Blake v. Massachusetts Parole Bd. , 341 N.E. 2d 902 (Mass. Sup. Jud. Ct. 1976); State ex rel. Renner v. Dept. of H. & S. Serv. , 71 Wis. 2d 112, 237 N.W. 2d 699, 701-702 (Sup. Ct. 1976); Belton v. Vitek , 113 N.H. 183, 304 A.2d 362, 364 (Sup. Ct. 1973); Glidden v. State , 301 A.2d 539, 541 (Me. Sup. Jud. Ct. 1973).

Logic and the sound principles of law represented by the generally accepted rule constrains us to accept it and to apply it. Accordingly, the appeal is dismissed.


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