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Cain v. New Jersey State Parole Board

Decided: November 6, 1978.

DONALD CAIN AND ANTHONY FABRO, PETITIONERS-APPELLANTS,
v.
NEW JERSEY STATE PAROLE BOARD, DEFENDANT-RESPONDENT



On certification to the Superior Court, Appellate Division, whose opinion is reported at 155 N.J. Super. 245.

For reversal -- Chief Justice Hughes and Justices Mountain, Sullivan, Pashman, Clifford, Schreiber and Handler. For affirmance -- None. The opinion of the court was delivered by Sullivan, J.

Sullivan

The two petitioners herein are under separate judgments of conviction in unrelated criminal cases. Their appeals from denial of parole eligibility were consolidated before the Appellate Division since they present a single legal issue. Basically involved is the interpretation of N.J.S.A. 30:4-123.35 which provides in pertinent part that

any prisoner in a county penitentiary serving a term having a maximum greater than a year and who has served at least 1 year of such term shall be permitted to make application to the board [New Jersey State Parole Board] for parole.

The specific question is whether consecutive nine-month sentences to a county institution can be aggregated to meet the statutory minimum of one year. The facts in each case are not in dispute. Donald Cain, one of the petitioners herein, was indicted, tried and convicted of two counts of possession and two counts of distribution of a controlled dangerous substance. On March 5, 1976 he was sentenced to four consecutive nine-month terms in the Mercer County Correction Center.

Anthony Fabro, the other petitioner, pled guilty on separate indictments to two counts of breaking and entering with intent to commit larceny, and two counts of larceny. On September 17, 1976 he was sentenced to four consecutive nine-month terms in the Mercer County Correction Center.

The Parole Board denied their requests for parole consideration after each had served one year of his aggregated sentence, holding that the statute did not permit cumulation of sentences for parole purposes in the circumstances. The Appellate Division affirmed in an opinion reported at 155 N.J. Super. 245 (1978). This Court granted certification, 77 N.J. 473 (1978).

Subsequent to the granting of certification, both petitioners completed the service of their sentences, less credits, and have been released from the Mercer County Correction Center. This alone, though, does not render the issue moot.

There is at least one case, Napoleon v. New Jersey State Parole Board, pending in the Appellate Division where the questions of law are identical with those in the instant case. Although the newly enacted penal code provides that the aggregate of consecutive terms to a county institution shall not exceed 18 months, see N.J.S.A. 2C:44-5(a)(2) (effective September 1, 1979), the potential for sentencing like that here under consideration will continue to exist. For these reasons, the issue raised by petitioners is not moot. The wrong alleged is one capable of repetition yet evading review, State v. Allen, 73 N.J. 132, 138-139 (1977), and also presents an issue of public importance. See Resnick v. E. Brunswick Tp. Bd. of Ed., 77 N.J. 88, 95, n. 4 (1978).

We have statutory provisions providing for the aggregation of consecutive sentences for purposes of parole. They are contained in N.J.S.A. 30:4-123.10 which provides in part:

No inmate of a penal or correctional institution serving a sentence for a fixed minimum and maximum term shall be ...


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