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State v. Maglio

February 4, 1983

STATE OF NEW JERSEY, PLAINTIFF,
v.
DOUGLAS MAGLIO, DEFENDANT



MacKenzie, J.s.c.

Mackenzie

Defendant, a resident of Florida, pleaded guilty to three counts of theft by deception. N.J.S.A. 2C:20-4 a. In his factual statement he admitted committing these offenses while temporarily visiting relatives in New Jersey. At sentencing defendant expressed a wish to return to Florida should a noncustodial sentence be imposed. A comparison of the criteria (N.J.S.A. 2C:44-1 a., b.) for imposing or withholding a sentence of imprisonment led this court to the conclusion that the mitigating circumstances outweighed the aggravating factors. Defendant was placed on probation for a term of three years, subject to the standard conditions and to certain special conditions. N.J.S.A. 2C:45-1. Supervision of defendant was allowed to be transferred to the appropriate probation department in Florida, pursuant to the Uniform Act for Out-of-State Parolee Supervision, N.J.S.A. 2A:168-14 et seq. See, also, Fla.Stat. § 949.07.

One of the special conditions of probation imposed by the court was the requirement that defendant waive in advance his right to an extradition hearing in the event a violation of probation complaint is filed. He consented in court and, shortly thereafter, signed a waiver of extradition form in the presence of his attorney. The authority of the court to impose such a special condition of probation has never been the subject of any judicial opinion in New Jersey.

N.J.S.A. 2C:45-1 authorizes the court to "attach such reasonable conditions, authorized by this section, as it deems necessary to insure that he [the probationer] will lead a law-abiding life, or is likely to assist him to do so." Waiver of the right to an extradition hearing is not an enumerated specific condition of

probation which appears in N.J.S.A. 2C:45-1 b. Nevertheless, there is a catch-all provision which permits the court to require one sentenced

(12) To satisfy any other condition reasonably related to the rehabilitation of the defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience; [ N.J.S.A. 2C:45-1b.(12)]

Similar broad language was contained in the predecessor statute, N.J.S.A. 2A:168-2.*fn1 N.J.S.A. 2C:45-1 b.(12) and its predecessor have been construed to permit the imposition of probation conditions not explicitly listed in the statute. See State v. Bausch, 83 N.J. 425, 433 (1980). State v. Monaco, 166 N.J. Super. 435 (App.Div.1979) provides one example of the discretionary imposition of a condition of probation not specified in the statute. In Monaco the sentencing judge imposed the special condition that defendant complete an inpatient drug treatment program, and this condition was upheld when challenged on appeal.

N.J.S.A. 2A:168-14 directs the Governor of New Jersey to enter into a compact authorizing signatory states to supervise probationers and parolees permitted to reside outside New Jersey. N.J.S.A. 2A:168-14(3) provides that the supervising states, by signing the compact, waive their right to require that formal extradition procedures be followed when the sentencing state

requests return of the probationer. Florida also has enacted this statute. Fla.Stat. § 949.07. In Louisiana v. Aronson, 105 N.J. Super. 410 (App.Div.), aff'd o.b. 54 N.J. 238 (1969), the court held that N.J.S.A. 2A:168-14(3) prevented New Jersey from requiring that formal extradition procedures be followed when return of a probationer was requested. The opinion in California v. Crump, 180 N.J. Super. 27 (App.Div.1981), established that when a sentencing state is a great distance from a supervising state, a probationer can request a hearing to determine if a prima facie case of probation violation has been made out. The hearing will save defendant the inconvenience of returning to California if there is absolutely no merit to the claim that a violation of probation occurred. No mention of the waiver of extradition rights by a defendant appears in the Crump or Aronson opinion.

The waiver provision in N.J.S.A. 2A:168-14(3) applies to relations between states and cannot be construed as implying a waiver of a defendant's rights to have formal extradition procedures followed. Waiver of extradition rights is expressly covered by the Uniform Criminal Extradition Act (N.J.S.A. 2A:160-1 et seq.) and any waiver ...


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