On appeal from the New Jersey State Parole Board.
Morton I. Greenberg, J. H. Coleman and R. S. Cohen. The opinion of the court was delivered by Morton I. Greenberg, P.J.A.D.
This matter comes on before the court on appeal from action of the respondent, New Jersey Parole Board, denying appellant, Taiwo S. Tyehimba, a full-step reduction in his sentence but allowing him a half-step reduction as authorized by N.J.S.A. 30:4-123.51(j). See N.J. Parole Bd. v. Byrne, 93 N.J. 192 (1983).
The circumstances leading to this appeal are not complicated. On October 12, 1979 defendant was sentenced to a total term of not less than 20 years and not more than 23 years for offenses arising from an armed bank robbery. He was subsequently sentenced to a consecutive term of not less than one year and not more than two years for a conspiracy to escape. Thus his aggregate sentence was not less than 21 years and not more than 25 years. These offenses were committed prior to the effective date of the New Jersey Code of Criminal Justice. N.J.S.A. 2C:1-1 et seq. Had the Parole Act of 1979, N.J.S.A. 30:4-123.45 et seq., not been enacted, appellant's parole eligibility would have been fixed under the Parole Act of 1948, L. 1948, c. 48, which required that a repeat offender serve a longer portion of his sentence before becoming eligible for parole than is required under the 1979 law. See N.J. Parole Bd. v. Byrne, 182 N.J. Super. 540, 543-544 (App.Div.1982), aff'd in part, rev'd in part 93 N.J. 192 (1983).
The Parole Act of 1979 granted a windfall to some inmates serving sentences subject to the Parole Act of 1948. While it provided that an inmate serving a minimum and maximum term would continue to be primarily eligible for parole on the basis of the 1948 act, the parole eligibility date for multiple offenders
such as appellant would be computed as if they had committed one fewer prior offense. N.J.S.A. 30:4-123.51(j); N.J. Parole Bd. v. Byrne, supra, 93 N.J. at 196-197. However, this full-step reduction in the parole eligibility date would not be allowed if the prosecutor or sentencing judge advised the parole board that the punitive aspects of the sentence had not been fulfilled. In that instance, the inmate would receive only one-half of the reduction in the eligibility date that he would have otherwise been awarded. Ibid. The Parole Act of 1979 provided that, except to the extent constitutionally mandated, the advice of the judge or prosecutor need not be supported by reasons. In view of the circumstance that N.J.S.A. 30:4-123.51(j) was applicable to appellant, his case was referred to the sentencing judge and the prosecutor and, as the prosecutor objected to the full-step reduction, the parole board allowed him only a half-step reduction and so advised him on February 6, 1981.
Subsequently the Supreme Court decided N.J. Parole Bd. v. Byrne, supra, 93 N.J. 192. There the inmates appealed from denial of full-step reductions refused when the prosecutors advised that they be denied. The court held that the loss of the full-step reduction implicated a liberty interest protected by the due process clause. It concluded that the process due was as follows:
Only a few, basic procedures are required to deal with the risks of erroneous or arbitrary determinations in this context. We conclude that the process required is notice of the pendency of the parole disposition, a statement by the objecting judge or prosecutor of the reasons why the punitive aspects of the sentence have not been fulfilled, and the opportunity for the prisoner to respond in writing to that statement of reasons. No hearing, confrontation, or counsel issues are implicated here. [ Id. 93 N.J. at 211]
As a consequence of the Supreme Court decision, on June 20, 1983 the parole board wrote the judge and prosecutor in appellant's case and requested a written statement of reasons, if there were any, for their objection to the whole-step reduction. The board requested that the reasons be sent to appellant who could respond to them. A copy of the letter of June 20, 1983 was sent to appellant. While the judge did not
respond, on July 12, 1983 the prosecutor sent a letter to the board outlining his objections as follows:
Prior to his involvement in the armed robbery of March 9, 1979, this defendant had experienced many prior arrests, convictions, incarcerations, parole and violations of parole. The defendant began his adult criminal career at nineteen years of age with a conviction in 1968 for unlawful possession of a firearm and also shoplifting. In 1970, this defendant was sentenced to nine to fifteen years in the New Jersey State Prison on an armed robbery conviction. That ...