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State v. Generoso

Decided: March 6, 1978.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
PHILIP GENEROSO, DEFENDANT-APPELLANT



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

Horn

This appeal raises two questions which do not appear to have been previously decided in our State. They are: (1) May a defendant's probation be revoked upon his uncorroborated admission of conduct which is in violation of the terms and conditions of his probation?*fn1 (2) Is a probationer entitled to Miranda*fn2 warnings before he is questioned concerning his activities which may lead to revocation of his term of probation?

Defendant unsuccessfully raised both of these questions at a hearing for the revocation of his term of probation before the trial court. He then appealed from the order revoking his probation.

After pleading guilty to assault with intent to rob (N.J.S.A. 2A:90-2) on April 28, 1976, defendant was given a suspended indeterminate sentence to the Youth Correction Institution complex. He was placed on probation for three years "with drug dependency rules" to apply, and was required to satisfactorily complete a residential drug-treatment program.

On June 24, 1977 defendant was charged with violating the terms and conditions of his probation because of (1) his use (and being under the influence) of heroin; (2) his use (and being under the influence) of tetrahydrocannabinols

(THC),*fn3 and (3) his refusal to cooperate with and participate in a drug-treatment program.

On July 1, 1977 a hearing on the alleged probation violation was conducted. Defendant was found to be in violation of the first two charges. The judge sentenced him to an indeterminate term at the Youth Correction Institution Complex. Upon defendant's immediate application the sentence was amended to provide that he be placed in an inpatient drug treatment center. The evidence that defendant violated probation was based solely on the testimony of his supervising probation officer, Michael Kranayk.

On May 19, 1977 urine specimens submitted by defendant indicated the use of methadone. On May 31, 1977 defendant reported to Kranayk. Kranayk questioned him with regard to current narcotics abuse. Defendant initially denied using narcotics. Upon further questioning he admitted to having used heroin during the month of February, March and April 1977. He also admitted having "abused" THC on May 14, 1977. Two other probation officers were in the office at that time. Kranayk then discussed with defendant a treatment plant for his narcotics abuse. Defendant said he was not interested in a residential drug treatment program. Kranayk told defendant that, if he would not enter an inpatient program as arranged by Kranayk, then defendant would be taken into custody and charged with violation of probation. The charge of probation violation followed.

We consider the first question -- as to lack of corroboration. Defendant submits that State v. Lucas , 30 N.J. 37, 51 (1959), supports his contention that his uncorroborated admission to his probation officer was an insufficient foundation upon which to base his probation violation. In Lucas defendant was convicted of murder in the first degree by reason of his feloniously setting on fire a building, causing the

death of three occupants. He contended that the trial judge erred in refusing to direct a verdict of acquittal because of insufficient corroboration of his confession. Although defendant was unsuccessful in this argument because the State, in the view of the Supreme Court, had introduced sufficient proof independent of the confession to strengthen or bolster the confession "tend[ing] to generate a belief in its trustworthiness, plus independent proof of loss or injury" (30 N.J. at 56), nevertheless the court noted that:

It is a widely accepted doctrine reflected in either American decisional or statutory law that an uncorroborated extra-judicial confession cannot provide the evidential basis to sustain a ...


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