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State v. Clay

Decided As Amended February 28 1989.: February 3, 1989.


On appeal from the Superior Court of New Jersey, Law Division, Atlantic County.

King, Ashbey and Skillman. The opinion of the court was delivered by King, P.J.A.D.


The issue in this case is whether a participant in the Intensive Supervision Program who fails to abide by the rules and leaves New Jersey is guilty of the crime of escape. N.J.S.A. 2C:29-5 defines the crime of escape:

a. Escape. A person commits an offense if he without lawful authority removes himself from official detention or fails to return to official detention following temporary leave granted for a specific purpose or limited period. "Official detention" means arrest, detention in any facility for custody of persons under charge or conviction of a crime or offense, or committed pursuant to chapter 4 [mental illness] of this Title, or alleged or found to be delinquent, detention for extradition or deportation, or any other detention for law enforcement purposes; but "official detention" does not include supervision of probation or parole, or constraint incidental to release on bail. [Explanation added.]

This penal statute became effective September 1, 1979 as part of the Code of Criminal Justice. L. 1978, c. 95.

The Intensive Supervision Program (ISP or Program) was added to R. 3:21-10(e) by amendment adopted effective September 1983, in implementation of R. 3:21-10(b)(5) then adopted. Pressler, Current New Jersey Court Rules, Comment R. 3:21-10(e) (1988). R. 3:21-10(e) provides:

Intensive Supervision. Motions for change of custodial sentence and entry into the Intensive Supervision Program, as provided for in paragraph (b) of this rule, shall be addressed entirely to the sound discretion of the three-judge panel assigned to hear them. Because of the nature of the program, there shall be no administrative or judicial review at the several levels of eligibility established under the program. No further appellate review of the panel's substantive decision shall be afforded. The three-judge panel shall have the authority to resentence offenders, in accordance with applicable statutes, in the event they fail to perform satisfactorily following entry into the program. [Emphasis supplied.]

The ISP is essentially a post-sentence, post-incarceration program of judicial intervention and diversion back to the community. In discussing "the inherent power to dismiss an indictment in appropriate circumstances," State v. Abbati, 99 N.J. 418, 432-433 (1985), our Supreme Court collaterally described ISP several years ago:

This Court's authorization and the subsequent implementation of pretrial intervention programs, R. 3:28, is illustrative of that judicial responsibility. See State v. Leonardis, 71 N.J. 85, 89 (1976) (Leonardis I). See N.J.S.A. 2C:43-12 to 22 (Criminal Code codifies pretrial intervention program). The judicially-created Intensive Supervision Program is another example of the courts' inherent responsibility and power to manage efficiently the criminal justice system. In response to the overcrowding of our prisons, the judiciary proposed and subsequently authorized a program of conditional release from custody -- a form of intermediate punishment between incarceration and probation -- for certain carefully screened non-violent offenders. See Judicial Conference Planning Committee Final Report 85 (1982); R. 3:21-10(e). We note that this program was endorsed by the Executive branch. See Office of the Governor, Prison Overcrowding: A Plan of Action 9-10 (1982).

In May 1983 the Administrative Office of the Courts issued an informational pamphlet describing ISP. The program operates independently from the customary probation and parole programs. The traditional probation program operates as an arm of the courts in lieu of a custodial sentence. N.J.S.A. 2C:45-1 to -4. The traditional parole program, an exclusively executive function operated by the Parole Board, is implemented

post-custodially. N.J.S.A. 30:4-123.45 to -123.69. ISP rests between traditional probation and parole but is definitely a product of the judiciary. In that sense it is more like probation. In the sense that the convicted participant is taken out of prison, it is more like parole.

The ISP pamphlet's "Preface" described the reasons and purpose behind ISP:

In response to the prison over-crowding crisis the legislature funded an intensive supervision program to be operated by the Administrative Office of the Courts on an experimental basis. This program is designed to test whether an intermediate form of punishment, one which would be less costly than prison, but much more onerous than traditional probation, will achieve the criminal justice objective of deterrence -- general and specific -- as well as rehabilitation. This experiment is frankly innovative since it has never been tried before in New Jersey. While success of any social program cannot be assured, particularly one that attempts to deal positively and constructively with persons who have not succeeded elsewhere and which also intends to guard society against future criminality, nevertheless, this program has been carefully designed to present a realistic and tough-minded approach to one of the most difficult problems facing society today. [ Intensive Supervision Program, at iii (1983).]

The ISP thus was funded by the Legislature ($1,000,000), endorsed by the Executive branch, and operated by the Judiciary. In a certain sense it functioned as a concert of traditionally separated powers. No specific legislation or court rules have formalized the operation's structure. The 1983 ISP pamphlet and its 1986 supplement seemingly embody the Program's operational standards.

The "Executive Summary" in the 1983 pamphlet contained the following descriptive summary of ISP:

The program provides a structure within which certain offenders sentenced to state penal institutions in the traditional fashion are afforded an opportunity to work their way back into the community under intensive supervision provided they present a plan which gives full assurance to a Screening Board and a Resentencing Panel of judges that their return will result in a positive social adjustment and will not jeopardize the public's safety.

Features of the program include:

The pamphlet's "Introduction" section explains the application procedure. The program is open to "inmates serving state prison sentences for nonviolent offenses, whose participation in the program will not be repugnant to public sensibilities, and for whom there is a reasonable probability of success." Intensive Supervision Program at 1. An inmate can apply for admission only after serving "a minimum of 30 days in custody and . . . no later than 60 days after the execution of sentence." Ibid. The applicant must develop a plan upon release including provisions for living accommodations, meeting financial obligations, counseling, vocational and educational needs, and restitution. A Community Sponsor is necessary. The program is described as "an intermediate form of punishment, less onerous than incarceration but more restrictive than standard probation supervision." "Continuous monitoring" is promised and "compliance" must be absolute. The applicant is warned that " failure will result in immediate reincarceration." Ibid. [Emphasis

supplied.] The section entitled "program philosophy" again warns the applicant that failure will result in " immediate return to the institution." [Emphasis supplied.]

The information pamphlet describes the program's actual mechanics as follows:

If the applicant is deemed eligible for the program, his application will be forwarded to a 3 judge Resentencing Panel. The Panel will review the application for resentence to determine if the applicant is eligible for entry into ISP. If the Panel determines that the applicant is eligible, it will grant the application for resentencing and adjourn the hearing for 90 days, place the applicant on recognizance to the Community Sponsor and require adherence to the applicant's plan and conditions of ISP. During this trial period his behavior will be closely monitored.

At the conclusion of this period, the participant may reapply to the Panel for another 90 day release period. The Panel will assess the applicant's continuing motivation and commitment. If the Panel members conclude that he remains dedicated to his goals, they will continue his release pending resentence for a second 90 day period. Successful completion of this period will trigger a resentencing hearing at which the applicant will be resentenced pursuant to R. 3:21-10(b) to the original term of incarceration less the time served. Sentence will be suspended in accordance with N.J.S.A. 2C:45-1 et seq., subject to the program participant's continuing compliance with his plan and conditions of ISP. The maximum period of suspension will be the maximum term which was initially imposed or 5 years, whichever is less, minus time served. There will be periodic continuation hearings to assess compliance throughout the period of release. Failure to continue to aggressively fulfill the plan's obligations will result in a referral back to the Resentencing Panel for a violation hearing and reincarceration.

All ISP participants must successfully complete a minimum of one year of intensive supervision. Thereafter, they may be transferred from intensive supervision to regular probation supervision or be discharged entirely, at the discretion of the Resentencing Panel. [ Intensive Supervision Program at 5-6; emphasis supplied.]

In May 1983 Chief Justice Wilentz formally implemented ISP by order. The order, contained in Intensive Supervision Program at 8-9, stated:


Ordered, pursuant to N.J.Const. (1947), Art. VI, Sec. II, par. 3 in furtherance of the establishment of the Intensive Supervision Program, that R.

3:21-10(b)(1) be relaxed to allow the court, upon motion, to change a custodial sentence to permit entry of the defendant into the Intensive Supervision Program. A motion pursuant to this Order shall be addressed to the sound discretion of the three-judge panel named herein, and shall be made in conformance with, and only when permitted by, the Intensive Supervision Program adopted by the Supreme Court. There shall be no administrative or judicial review at the several levels of eligibility established under the Program, nor any appellate review of the panel's substantive decision.

FURTHER ORDERED that a three-judge panel is hereby established to consider applications, filed by persons under sentence of imprisonment, for conditional release for purposes of entry into the Intensive Supervision Program. The panel shall also have the authority, pursuant to the Program, to resentence offenders in accordance with law in the event they fail to perform satisfactorily following entry into the Program.

FURTHER ORDERED that said three-judge panel shall consist of Superior Court Judges, Theodore Z. Davis, William F. Harth and John A. Marzulli, which ...

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