On appeal from Superior Court of New Jersey, Law Division, Burlington County.
Ashbey and Skillman. The opinion of the court was delivered by Skillman, J.A.D.
Defendant was indicted on one count of third degree theft by unlawful taking, in violation of N.J.S.A. 2C:20-3, fourteen counts of falsifying or tampering with records, in violation of N.J.S.A. 2C:21-4a, and thirteen counts of uttering a forged instrument, in violation of N.J.S.A. 2C:21-1a(3). Pursuant to a plea bargain, defendant pled guilty to the single count of theft by unlawful taking. The court sentenced her to three years probation, on the condition that she be incarcerated in the county jail for a period of 180 days. The court also ordered defendant to pay $5,200 in restitution.
Approximately two months after sentencing, defendant was charged with violating probation by committing a new offense. More specifically, defendant was charged with violating N.J.S.A. 2C:21-4a by filing a bank loan application representing that she was employed when, in fact, she had been fired nine days earlier. A hearing was held on the charge which resulted in an adjudication that defendant had violated a condition of her
probation by committing a new offense. Based on this violation, the court sentenced defendant to a four year term of imprisonment.
On appeal, defendant argues that probation may be revoked for commission of a new offense only upon a conviction in a criminal trial. Defendant acknowledges that probation could be revoked before enactment of the Code of Criminal Justice upon proof of commission of a new crime at a probation revocation hearing without a criminal conviction. See State v. Wasserman, 75 N.J. Super. 480, 485, (App.Div.1962), aff'd 39 N.J. 516 (1963). However, defendant contends that a criminal conviction is required under the Code before probation may be revoked on the basis of a new offense. Defendant relies upon N.J.S.A. 2C:45-3a(3) and (4), which provide in pertinent part:
(3) The court, if there is probable cause to believe that the defendant has committed another offense or if he has been held to answer therefor, may commit him without bail, pending a determination of the charge by the court having jurisdiction thereof;
(4) The court, if satisfied that the defendant has inexcusably failed to comply with a substantial requirement imposed as a condition of the order or if he has been convicted of another offense, may revoke the suspension or probation and sentence or resentence the defendant, as provided in this section. [Emphasis added].
Defendant interprets the italicized language of N.J.S.A. 2C:45-3a(4) to mean that a criminal conviction is a precondition of revocation of probation based upon a new offense.
We reject this interpretation of N.J.S.A. 2C:45-3a(3) and (4). We note that a standard condition of every probationary sentence is that the probationer shall not commit another offense while on probation. N.J.S.A. 2C:45-1a. Therefore, the commission of a new offense constitutes a failure "to comply with a substantial requirement imposed as a condition of probation" within the intent of N.J.S.A. 2C:45-3a(4). The fact that the conviction of a new offense in a criminal trial is also grounds for revocation of probation does not preclude revocation based solely upon evidence of criminal conduct presented at a revocation hearing.
Defendant contends that support for her interpretation of N.J.S.A. 2C:45-3a(3) and (4) is provided by the commentary to the proposed Code issued by the New Jersey Criminal Law Revision Commission. Commentary, New Jersey Penal Code (1971), Vol. II at 347. However, the commentary to the Code only states that a delay in a probation revocation hearing until after the trial of a crime allegedly committed while on probation is the "preferable" procedure. It does not suggest that the Code mandates that procedure.*fn1 To the contrary, the commentary recognizes that "a charge that the ...