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Board of Trustees of Youth Correctional Institution Complex v. Smalls

Decided: December 26, 1979.

BOARD OF TRUSTEES OF THE YOUTH CORRECTIONAL INSTITUTION COMPLEX, RESPONDENT,
v.
ANDREW SMALLS, APPELLANT



On appeal from the Board of Trustees of the Youth Correctional Institution Complex.

Seidman, Michels and Devine. The opinion of the court was delivered by Michels, J.A.D.

Michels

Appellant Andrew Smalls, who is also known as Johnny Thomas, appeals from a final decision of respondent Board of Trustees of the Youth Correctional Institution Complex (the Board) revoking his parole. The revocation was based on several parole violations, including convictions in the Superior Court, Law Division, Hudson County, for receiving stolen property and in the Supreme Court of the State of New York, County of New York, for attempted burglary. Appellant does not contest the Board's finding that he violated the conditions of parole. Rather, he challenges the revocation solely on jurisdictional and procedural grounds. Thus, a brief chronology of the events leading to the revocation is helpful to a resolution of this appeal.

On December 6, 1973 appellant was sentenced to the Youth Correctional Institution Complex for an indeterminate term with a five-year maximum following his conviction for breaking and entering with intent to steal. On January 7, 1977 he was released on parole, at which time his adjusted maximum sentence date was July 2, 1978. On March 24, 1977, while on parole, he was arrested in Jersey City and charged with receiving stolen

property and failing to give a good account of himself. On May 29, 1977 he was again arrested in Jersey City and charged with breaking and entering. These charges subsequently led to his indictment by the Hudson County grand jury.

Thereafter, when appellant failed to report to his parole officer, the Bureau of Parole declared him to be missing, and on July 20, 1977 filed a warrant with the Jersey City Police Department. On August 3, 1977 appellant was arrested in New York City on charges of burglary and possessing stolen property. As a result of the foregoing arrests and his failure to report to his parole officer, a notice of probable cause hearing, dated August 24, 1977, was sent to appellant at his last known address. On August 30, 1977 a probable cause hearing was held even though appellant failed to appear. The hearing officer determined that there was probable cause to believe that appellant violated the conditions of his parole and that he should be arrested pending a final revocation hearing. On October 18, 1977 a "Wanted Persons Notice" was filed with the New Jersey State Police. On October 26, 1977 the final parole revocation hearing was held notwithstanding appellant's failure to appear, and on November 9, 1977 his parole was revoked. At that time appellant still owed eight months on his sentence.

On December 5, 1977 appellant pleaded guilty in the Supreme Court of the State of New York to a charge of attempted burglary and was sentenced to a prison term of 1 1/2 to 3 years. The sentence provided that it be "concurrent with any time to be served in New Jersey." On March 6, 1978 the Bureau of Interstate Services of New Jersey Department of Corrections sent to the Department of Correctional Services of the State of New York a parole warrant against appellant. On March 22, 1978 the warrant was returned to the Bureau of Interstate Services which, in turn, sent the warrant to Clinton Correctional Facility at Dannemora, New York, where appellant was then imprisoned, with instructions that it be filed as a detainer against him. On March 28, 1978 appellant was transferred to

the Great Meadow Correctional Facility in Comstock, New York, and thereafter the warrant was filed at that institution.

On May 17, 1978 appellant, pursuant to the Interstate Agreement on Detainers, to which both New York and New Jersey are signatories (see New York C.P.L. ยง 580 (McKinney's 1971); N.J.S.A. 2A:159A-1 et seq.), requested final disposition of charges pending against him in Hudson County. On June 27, 1978 appellant was returned to the Hudson County Correctional Center to await disposition of the criminal charges pending against him in Hudson County. The Bureau of Parole thereupon filed a new notice of probable cause hearing because the prior hearing was conducted in absentia. Appellant, however, waived this hearing. On September 11, 1978 appellant pleaded guilty in Hudson County to receiving stolen property, and on October 12, 1978 was sentenced to the Hudson County Penitentiary for one year, which sentence was to be served concurrently with the sentence he was then serving in New York. Appellant was thereupon returned to the Great Meadow Correctional Facility to continue serving his sentence.

On June 5, 1979 appellant was paroled by the New York authorities. Since there was still pending against him a New Jersey parole warrant, he was delivered by the New York authorities to the Youth Correctional Institution Complex and confined there as a parole violator. On June 27, 1979 a final parole revocation was held. Appellant did not contest the validity of the revocation charges, but attacked the jurisdiction of the Board to revoke his parole on the ground that he was not afforded a timely hearing. On ...


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