On appeal from the Superior Court, Law Division, Bergen County, and the New Jersey State Parole Board.
Matthews, King and Morton I. Greenberg. The opinion of the court was delivered by Morton I. Greenberg, J.A.D.
These consolidated appeals have been generated by proceedings following the application of Thomas Trantino for parole from the New Jersey State Prison. In the early 1960's Trantino was indicted and convicted for murder of two police officers, Peter Voto and Gary Tedesco, in Bergen County. He was originally sentenced to death on February 28, 1964. Ultimately, however, his sentence was changed on January 17, 1972 to life imprisonment as a result of the decision of the Supreme Court in State v. Funicello , 60 N.J. 60 (1972), cert. den. 408 U.S. 942, 92 S. Ct. 2849, 33 L. Ed. 2d 766 (1972), which terminated the death penalty in New Jersey under the law then existing.
Trantino became eligible for parole in 1979. He was given a hearing before the three-member Parole Board provided under the law at that time, but denied parole. See N.J.S.A. 30:4-123.1. Another hearing was held in his case on March 4, 1980. Only two members of the board were present. The two members approved parole contingent upon Trantino being accepted to a New York parole plan. The notice of the hearing determination indicated that a written decision would follow and that it would "contain special parole conditions." Following this determination a full board of three members held a rehearing on April 1, 1980. The board then denied parole. It recognized, however, that the Parole Act of 1979, N.J.S.A. 30:4-123.45 et seq., would become effective on April 21, 1980. The new act provided for a seven-person board and established different standards for parole from those in the prior law. Compare N.J.S.A. 30:4-123.53 with N.J.S.A. 30:4-123.14. The old board scheduled a new hearing for June 1980 so that the new board could consider Trantino's case under the new standards.
A hearing was held on June 9, 1980 before a member of the new board acting as a hearing officer. That member recommended that Trantino be paroled. His recommendation was reviewed by a board panel on July 3, 1980. It ruled that Trantino be granted parole "effective no earlier than August 12, 1980." It further ordered that the "effective date of release on parole is subject to the approval of parole plan by the New Jersey State Parole Board, continuance of acceptable institutional conduct, and completion of special pre-parole conditions, if any noted below." The conditions referred to were as follows:
You will be paroled with the following Special Conditions: (1) The Board requests the judge with appropriate jurisdiction pursuant to § 15B of the new New Jersey Parole Law, to set an amount in restitution which you shall make to the survivors of the victims (police officers). Payment of such restitution is a Special Condition of your parole, and failure to make good faith effort to make such payment will result in the revocation of your parole; and (2) The Board is requesting intensive supervision for you initially, and thereafter, intensive supervision for you as it is deemed necessary by the District Parole Supervisor. The Board empowers the District Parole Supervisor to impose and discharge any additional Special Conditions which he may, from time to time, deem supportive to your parole.
The reference to "restitution" in the special conditions triggered the application of N.J.S.A. 30:4-123.59 b, a provision in the new Parole Act. That section reads as follows:
Each parolee shall agree, as evidenced by his signature to abide by specific conditions of parole established by the appropriate board panel which shall be enumerated in writing in a certificate of parole and shall be given to the parolee upon release. Such conditions shall include, among other things, a requirement that the parolee conduct himself in society in compliance with all laws and refrain from committing any crime, a requirement that the parolee obtain permission from his parole officer for any change in his residence, and a requirement that the parolee report at reasonable intervals to an assigned parole officer. In addition, based on prior history of the parolee, the member or board panel certifying parole release pursuant to section 11 may impose any other specific conditions of parole deemed reasonable in order to reduce the likelihood of recurrence of criminal behavior. Such special conditions may include, among other things, a requirement that the parolee make full or partial restitution, the amount of which restitution shall be set by the sentencing court upon request of the board.
On July 14, 1980 the chairman of the Parole Board addressed a letter to Judge Trautwein, assignment judge of Bergen County, to implement the decision of the board. The chairman
advised the judge that the board had determined to grant a parole to Trantino effective August 12, 1980 but that the board had decided that Trantino should make restitution as a condition of parole. He further pointed out that the quantum of restitution was to be set by the sentencing court. Accordingly, the chairman requested that a judge be assigned to set the amount. This letter came to the attention of Judge Galda who was acting assignment judge. Judge Galda, by letter of August 1, 1980, requested that no action be taken to release Trantino on August 12, 1980. He also raised various legal questions concerning the procedure to be followed. He indicated that a hearing would have to be scheduled on the matter and that he would endeavor to see that the hearing would be held not later than September 20, 1980, if possible. Trantino was not released on August 12, 1980 and indeed has never been paroled.
A hearing was held before Judge Trautwein on September 23 and 24, 1980. Counsel appeared at the hearing representing Trantino, the Parole Board, the families of the murdered officers, the Bergen County Prosecutor's office and certain amici curiae. Testimony was taken. Judge Trautwein reserved decision and then delivered an oral opinion on October 2, 1980. He ruled that it was impossible to set restitution in a case of intentional murder and that the Legislature had contemplated restitution to be used where the crime was economic in nature and payment could be made to the direct victim of the crime. He further indicated that since restitution could not be made, Trantino would have to continue to be confined. Judge Trautwein signed an order on October 8, 1980 which incorporated his oral decision by reference and provided that the decision not to set restitution was to be forwarded to the Parole Board for such further findings as it deemed necessary.
Further proceedings then ensued before the Parole Board. The chairman of the board wrote Trantino on October 8, 1979. He advised Trantino that the court's decision not to establish an amount of restitution had substantially changed the set of assumptions which underlay the board's previous decision to
approve his parole. Accordingly, the chairman indicated that the board had determined on October 8, 1980 to vacate the decision of July 3, 1980 which had established a release date no earlier than August 12, 1980. The chairman further advised Trantino that his case was being referred to the adult board panel for additional review.*fn1
Ultimately another hearing was held before five members of the seven-person board on November 13, 1980. The other two members were disqualified in the case. A formal written decision was rendered December 1, 1980 by the board. The board voted three to two to parole Trantino no earlier than December 23, 1980. The two dissenting members opposed granting parole. The release was made subject to appropriate court action establishing an amount of restitution pursuant to N.J.S.A. 30:4-123.59 b. The board said that the "effect of this decision is to deny release until the precondition is met. Should the Appellate Court determine that this precondition is inappropriate, the Board directs that a parole hearing on the issue of release be scheduled as soon as practicable." The significance of restitution in the parole process appeared unmistakenly in the opinion of the board:
The Special Condition of restitution is not intended to mitigate the serious harm which was committed by this offense but rather is intended as a compelling reminder of the wrong which was done. As such, restitution is meant to reduce the likelihood that the applicant would resort to criminal behavior and to further assist in the rehabilitative process. This is a valuable tool established by the Legislature for the Board's use.
The proceedings described above have given rise to two appeals to this court. On November 20, 1980 the Parole Board appealed from Judge Trautwein's order of October 8, 1980 refusing to fix the amount of restitution. Thus, reference to the "Appellate Court" in the decision of December 1, 1980 was to that appeal. On December 17, 1980 Trantino appealed from
the decision of the Parole Board rendered on December 1, 1980. After filing the notice of appeal, Trantino sought emergent relief requesting that he be released pending disposition of the case. We heard oral argument on his application on December 24, 1980. After oral argument we refused to order him released but ordered the two appeals consolidated. We have accelerated the appeal and permitted briefs to be filed by amici curiae.
On these appeals Trantino contends that he is entitled to release pending determination of the amount of restitution; that the board is bound by the decision of Judge Trautwein refusing to set an amount for restitution; that the Parole Act of 1979 does not contemplate restitution in a homicide case and that if it did, it would be beyond the power of the Legislature to authorize restitution as a condition of parole. The Parole Board argues that Trantino is legally confined, that restitution is appropriate in this case, the amount can and should be determined and that there is no constitutional impediment to ordering restitution.
We have no doubt that the Parole Board may appeal the decision of Judge Trautwein declining to establish an amount for restitution. N.J.S.A. 30:4-123.59 b provides that a condition of parole may include a requirement that the parolee make full or partial restitution. The section then states that "the amount of restitution shall be set by the sentencing court upon request of the board." Thus, it is the court which sets the amount of restitution but it is the board which determines whether full, partial or no restitution shall be required. The board, as is clearly set forth in its decision of December 1, 1980, considers that in an appropriate case restitution is a significant tool to reduce the likelihood that a parolee will resort to criminal behavior and assists in his rehabilitation. N.J.S.A. 30:4-123.53 provides that an adult inmate shall be ...