On appeal from Superior Court of New Jersey, Law Division, Monmouth County.
Petrella, Shebell and Gruccio. The opinion of the court was delivered by Gruccio, J.A.D.
The State appeals from a judgment dismissing Indictment No. 87-08-1404 charging Allan Jiminez with violating N.J.S.A. 2C:29-5(a), escape. At the time of defendant's flight from this jurisdiction, he was a participant in the New Jersey Intensive Supervision Program (ISP). The trial court found that ISP did not constitute official custody and therefore defendant could not be charged with the separate offense of escape. We reverse and remand this matter for trial.
Here are the facts: On June 25, 1985, defendant was convicted on two counts of third degree burglary, N.J.S.A. 2C:18-2, and two counts of third degree theft of moveable property, N.J.S.A. 2C:20-3(a). On November 8, 1985, defendant was sentenced to serve a maximum of ten years in Yardville Penitentiary.
Defendant made an application to the Intensive Supervision Program (ISP) and was accepted into the 90-day screening program in May 1986. On October 30, 1986, a 90-day review board recommended that defendant be placed in an alcohol treatment facility for 28 days as a condition of entry into ISP.
Defendant entered the Turning Point Program in Verona, New Jersey, on January 20, 1987, and subsequently left the facility against medical advice after eight days. Defendant fled the jurisdiction and later surrendered to authorities in Florida. Thereafter, defendant was extradited to New Jersey and expelled from the ISP. On August 19, 1987, defendant was indicted by a grand jury and charged with the separate offense of escape pursuant to N.J.S.A. 2C:29-5(a).
The record of the ISP court proceedings indicates that defendant was informed prior to his admission into ISP that he would be charged with a separate offense of escape if he left the State of New Jersey. We are told that all ISP participants are informed of this consequence.
On September 11, 1987, defendant entered a plea of not guilty along with a motion to dismiss the charge of escape, which was granted. The motion judge found that defendant could not be charged with escape as delineated in N.J.S.A. 2C:29-5(a) because defendant was not in "official detention" as contemplated by the statute. The State appeals and presents arguments regarding the intended construction of criminal statutes; policy concerns dealing with the underlying justification of ISP, and the viability of the ISP in general.
We agree with the State that ISP constitutes official detention as contemplated by N.J.S.A. 2C:29-5(a). We also find that the terms of defendant's ISP sentence established official detention. Defendant was confined in a pre-approved residence from 8 p.m. to 6 a.m. every night and could have been required, at any given time, to wear an electronic wristlet, to allow closer surveillance of his movements. His residence was also open to
unannounced, warrantless searches 24 hours a day. Defendant was not permitted to use drugs or alcohol, and was subject to random urinalysis tests to enforce that restriction. Moreover, he was required to obtain and maintain employment throughout his program sentence and was not permitted to obtain public assistance. These restrictions along with the intense, frequent and unscheduled observations by the ISP officers and community sponsors parallel the restrictions of incarceration.
In addition, at the ISP resentencing hearing, defendant was informed that he would receive credit for all time served in the program against his original ten-year prison term if he violated his ISP sentence.*fn1 Defendant was also informed that he would be charged with the separate ...