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State v. Kyc

Decided: May 27, 1992.

STATE OF NEW JERSEY, PLAINTIFF,
v.
TIMOTHY KYC, DEFENDANT



Imbriani, P.J.Cr.

Imbriani

IMNRIANI, P.J.Cr.

Can a prison inmate who is released from prison to return to his home under a Home Confinement Program (hereafter HCP) be convicted of escape if he leaves the program without authorization? We hold he cannot.

HCP is a novel and experimental program adopted by the Department of Corrections in September, 1989 and administered by the Bureau of Parole. Its purpose is to alleviate jail overcrowding and serve as a program of conditional release from custody to enable a prison inmate to bridge the cultural and psychological gap between prison life and societal life. A prison inmate is allowed to return to his home within six months of his earliest parole eligibility date subject to a program of heavy sanctions which are gradually lessened in the hope it will result in his good community adjustment when he is no longer subject to control by the Bureau of Parole. HCP is designed to achieve intensive short term control of a participant*fn1 while working towards the longer term goal of his ultimate behavioral reform.

When an inmate is accepted into the program he agrees to comply with many stringent rules, including the following: (1) he must remain in his approved residence except when permitted by his parole officer to go to work or other authorized

place, and (2) he may not leave New Jersey under any circumstances.

HCP was not created by statute and, unlike the Intensive Supervision Program (hereafter ISP), has never been judicially sanctioned. The ISP program differs from the HCP program in two significant respects: (1) an inmate is eligible for ISP as soon as he enters the prison system and (2) an ISP participant is free to go anywhere in the community.

Under the HCP program a participant's movements are monitored electronically by a "beeper" he must wear around his leg which will trigger an alarm in a monitoring station whenever he leaves his home without authorization. The defendant was admitted into the HDP program and on the morning of August 1, 1991 he met his parole officer in her office to discuss a recent urine test that was positive for drugs. If not satisfactorily explained this constitutes an "automatic program violation for which the inmate must be returned to custody". See New Jersey Department of Corrections, Bureau of Parole, Electronically Monitored Home Confinement Program, Policy Manual (1992). The parole officer allowed him to go to his place of employment to return work tools but instructed him to immediately return to the parole office. After defendant left he was not seen again until August 8, 1991, when he was arrested in Michigan.

The defendant was indicted for escape for failure "to return to official detention."*fn2 An escape is defined by N.J.S.A. 2C:29-5a as occurring when a person:

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 any other detention for law enforcement purposes; but "official detention" does not include supervision of probation or parole, or constraint ...


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