On appeal from the Superior Court of New Jersey, Law Division, Camden County.
Botter, King and McElroy. The opinion of the court was delivered by King, J.A.D.
This case presents the question whether a probationer has a right to a hearing in the "receiving state," New Jersey, where the "sending state," California, has revoked consent to out-of-state supervision and has claimed that a violation of probation has occurred. Our pertinent statute is titled "Compact Between States Relating to Persons Convicted of Crime on Probation or Parole." N.J.S.A. 2A:168-14 et seq. The act has also been called the Uniform Compact Act or the Uniform Act for Out-of-State Parole and Probation Supervision. It is the New Jersey by-product of the federal statute which states that:
The consent of Congress is hereby given to any two or more States to enter into agreements or compacts for cooperative effort and mutual assistance in the prevention of crime and in the enforcement of their respective criminal laws and policies, and to establish such agencies, joint or otherwise, as they may deem desirable for making effective such agreements and compacts. [4 U.S.C.A. § 112(a)]
This interstate compact has now been adopted by all states. New Jersey's version was originally adopted as R.S. 2:119-13; L. 1936, c. 41, § 2. See In re Casemento , 24 N.J.Misc. 345, 49 A.2d 437 (C.P.1945). The compact was designed to permit out-of-state supervision of probationers and parolees where agreeable to sister states. A secondary purpose was to facilitate return to the sending state "without the necessity of bringing formal extradition proceedings" of those at conditional liberty who violate their release terms. Louisiana v. Aronson , 105 N.J. Super. 410, 413 (App.Div.), aff'd 54 N.J. 238 (1969). Subsection 3 of N.J.S.A. 2A:168-14 is the key section to the retaking of alleged probation or parole violators by the sending state:
The duly accredited officers of a sending state may at all times enter a receiving state and there apprehend and retake any person on probation or parole. For that purpose no formalities will be required other than establishing the authority of the officer and the identity of the person to be retaken. All legal requirements to obtain extradition of fugitives from justice are hereby expressly waived on the part of states party hereto, as to such persons. The decision of the sending state to retake a person on probation or parole shall be conclusive upon and not reviewable within the receiving state: provided, however, that if at the time when a state seeks to retake a probationer or parolee there should be pending against him within the receiving state any criminal charge, or he should be suspected of having committed within such state a criminal offense, he shall not be retaken without the consent of the receiving state until discharged from prosecution or from imprisonment for such offense. [Emphasis supplied]
Appellant Crump urges that despite the italicized language federal constitutional considerations emanating from the United States Supreme Court's decisions in Morrissey v. Brewer , 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972) (due process on parole revocation), and Gagnon v. Scarpelli , 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973) (due process on probation revocation), require an initial probation revocation hearing in New Jersey in the circumstances of this particular case.
Appellant Crump has been serving a term of supervised probation in Camden County, New Jersey, following a criminal conviction in the State of California. On April 17, 1981 a bench warrant was issued from the Superior Court of California, County of Los Angeles, for the arrest of Crump for violation of his probation. An arrest warrant was forwarded to Collingswood, appellant's last known address. Thereafter the Camden County Prosecutor's Office issued a fugitive warrant for probation violation. N.J.S.A. 2A:160-21. On May 8 appellant was arrested and taken to the Camden County Jail. On May 11 appellant was brought before a judge of the Law Division with retained counsel of his selection. The assistant prosecutor relied on the Uniform Compact Act and resisted appellant's application for any type of hearing in New Jersey before his surrender to the California authorities for transfer.
Appellant's counsel informed the judge that his New Jersey probation was under the supervision of Camden County probation
officer Ostrow. Counsel represented to the court that "I had a conversation with the probation officer, Mr. Ostrow, and that Mr. Ostrow pointed out that Mr. Crump was a generally cooperative probationer and had done what it was that he was required to do." The prosecutor rejoined that "the basis of violation of probation is nonpayment of a fine [$5,000] due in California" and that any initial revocation hearing must be held in California. The judge denied appellant's application for a preliminary probation revocation hearing and for leave to file a writ of habeas corpus; he allowed a 72-hour stay of appellant's surrender to California authorities to permit application for relief to this court. On May 14 we granted appellant's application for a stay pending final hearing and accelerated the appeal on our calendar for resolution on the merits. R. 2:9-2.
At argument in chambers on the stay application it became apparent that a dispute over the method of payment of the fine might be the cause for the alleged probation violation. Appellant's counsel contended that he was told by the local officer to "hold off" paying the fine until the method of installment and identity of the recipient could be clarified with the California authorities. Counsel represented that in the interim since arrest the fine had been tendered to the California court which imposed it. The assistant prosecutor was unable to ...