On appeal from the Superior Court of New Jersey, Law Division, Union County.
Fritz, Ard and Trautwein. The opinion of the court was delivered by Trautwein, J.A.D.
This appeal tests the amenability of probation revocation proceedings to the Fifth Amendment privilege against self-incrimination and our Rules of Evidence.
On November 23, 1977 defendant received three concurrent sentences of five to seven years. All sentences were suspended and defendant placed on probation for five years.
He received notice of charges of violation of probation on June 25, 1980.
Violation of probation specifications charged defendant with (1) failure to complete a drug rehabilitation program; (2) failure to report a change of address; (3) failure to report to the Probation Department and (4) a conviction for shoplifting.
A revocation of probation hearing was conducted on July 11, 1980 by the original sentencing judge. Defendant was represented by counsel. Defendant, through counsel, admitted Specification No. 4 but denied Specification No. 3. The State withdrew Specifications Nos. 1 and 2. Defendant was found guilty of Specification No. 3 -- failure to report -- in addition to Specification No. 4. The sentencing judge revoked probation, vacated the prior sentences and imposed a sentence of three to four years in New Jersey State Prison and two concurrent six months
terms in the Union County Jail to run concurrent with the State Prison sentence. A motion for reduction of sentence was heard and denied by Judge Brody on August 8, 1980. This appeal followed.
Other than to admit Specification No. 4 and deny Specification No. 3 through counsel, defendant did not testify nor produce witnesses on his behalf.
Defendant now contends as a matter of plain error the following:
POINT I THE TRIAL COURT'S AND PROSECUTOR'S COMMENTS ON AND CONSIDERATION OF DEFENDANT'S FAILURE TO TESTIFY AT THE TRIAL TO DENY THE CHARGES AGAINST HIM VIOLATED THE DEFENDANT'S FIFTH AND FOURTEENTH AMENDMENT PRIVILEGE TO REMAIN SILENT AND WAS PLAIN ERROR.
POINT II THE TRIAL COURT'S AND PROSECUTOR'S COMMENTS ON AND CONSIDERATION OF DEFENDANT'S FAILURE TO TESTIFY AT THE TRIAL TO DENY THE CHARGES AGAINST HIM VIOLATED ACCEPTED NEW JERSEY RULES OF EVIDENCE, N.J.S.A. 2A:84A-31, RULE 39, AND N.J.S.A. 2A:84A-17, RULE 23.
A. NEW JERSEY RULES OF EVIDENCE, N.J.S.A. 2A:84A-1 ET SEQ., ARE APPLICABLE TO THE HEARING BELOW.
These contentions focus on certain comments made by Judge Brody at the inception of the revocation hearing and in his ultimate decision determining a violation of probation. As the hearing began the following colloquy occurred:
THE COURT: Well, maybe we should hear Mr. Johnson first and then you can rebut what he has to say since the positive evidence -- which way do you want to go first?
MR. WALDMAN (attorney for defendant): I think the State should.
MR. RODBART (Assistant Prosecutor): We're prepared to go first. I ...