Defendant Philip V. Serio is before this court on a charge of violating the terms and conditions of probation. He had been placed on probation on September 22, 1978 when he was sentenced to 364 days in the Bergen County Jail for an attempted break and entry to which he had previously pleaded guilty.
During his period of probation defendant was indicted for breaking and entering; arrested on a charge of theft of an automobile (December 12, 1978) and arrested on charges of possession of a controlled dangerous substance (February 10, 1979). Defendant has been unable to post bail and is presently in the Bergen County Jail awaiting disposition of these new charges.
On the basis of the above indictment and arrests the Chief Probation Officer of Bergen County charged defendant with violation of probation. There are no charges by the probation officer that the probationer failed to comply with any other terms and conditions of probation.
The precise question before this court is whether an individual on probation can have his probation revoked because he has been indicted or arrested during the period of probation. This is not a situation where a probationer has been convicted of a crime or pleaded guilty to a crime while on probation. In that circumstance the violation of probation is conclusively presumed. State v. Zachowski , 53 N.J. Super. 431 (App. Div. 1959). Nor is this a situation where an individual is charged with a crime and acquitted before revocation. See 76 A.L.R. 3d 564, 568.
Violations of probation are presently governed by N.J.S.A. 2A:168-4. The relevant portion of that statute provides that a chief probation officer may request that a probationer be arrested for violating any of the conditions of his probation. The statute also requires:
This portion of the statutory requirements has been complied with fully in this matter. The probation officer sets forth as his reasons the subsequent indictment and arrests.
Pursuant to N.J.S.A. 2A:168-4 the court is required to hold a "summary hearing," after which the court
Before the court holds that "summary hearing" it must determine if the charges do, in fact, arise to the level of being probation violations. To determine this it is necessary to first look at the purpose of probation.
When a court places an offender on probation it is doing so because it believes that confinement is not necessary to insure the protection of or to serve the needs of society or defendant. In State v. Pascal , 133 N.J.L. 528 (Sup. Ct. 1946), aff'd 1 N.J. 261 (1949), the court recognized that
An offender is placed on probation because a court considers that he may be reformed and is persuaded that probation in the particular case is not inimical to the well-being of society generally. The very term 'probation' connotes to the average mind an experiment or proving period; that the convicted person escapes the more ...