On appeal from the Superior Court of New Jersey, Law Division, Somerset County, whose decision is reported at 257 N.J. Super. 600 (Law Div. 1992).
Shebell, Arnold M. Stein and Conley. The opinion of the court was delivered by Shebell, J.A.D.
[261 NJSuper Page 105] The State appeals from the Law Division's dismissal of a Somerset County indictment which charged defendant with one count of third-degree escape (N.J.S.A. 2C:29-5a).*fn1 In his decision, the Law Division Judge noted that the Home Confinement Program (HCP), which defendant was participating in, did not exist at the time the escape statute, N.J.S.A. 2C:29-5, was adopted in 1979 as part of the Code of Criminal Justice. State v. Kyc, 257 N.J. Super. 600, 603, 608 A.2d 1013 (Law Div.1992). The Judge, therefore, concluded that the defendant was in a position similar to a participant in the Intensive Supervision Program (ISP) and was "free in the community" and not subject to "official detention." Id. at 603-04, 608 A.2d 1013.
He concluded that, under the authority of State v. Clay, 230 N.J. Super. 509, 553 A.2d 1356 (App.Div.1989), aff'd o.b., 118 N.J. 251, 571 A.2d 295 (1990), the charge could not stand against the defendant as an absconding participant in the HCP under either subsection a or b. Kyc, supra, 257 N.J. Super. at 604-05, 608 A.2d 1013. We reverse and remand.
Defendant had been sentenced to State Prison on June 8, 1990, to serve a term of five years, with a twenty-month term of parole ineligibility as mandated by N.J.S.A. 2C:35-7, there being no agreement from the prosecutor to permit a lesser mandatory term of parole ineligibility. Thereafter, defendant's original sentence was amended to four years of confinement with sixteen months of parole ineligibility.*fn2 On May 1, 1991, less than eleven months after the initial sentencing and while still ineligible for parole, defendant was permitted to leave the institution to stay with his family after being advised of his responsibilities and duties under HCP. According to the policy manual of the New Jersey Department of Corrections, all participants in the program are required to sign an agreement acknowledging that "unauthorized absence from my approved residence may be deemed to be an escape under the criminal code."
Defendant was given an electronic wristlet to wear, the purpose of which was to monitor whether he was at his home during the times when he was required to be there as he was not allowed to leave without permission. He was given curfews sufficient to permit him to go to work and then return home immediately. Participants in the program are further advised and must sign an agreement that any attempt to remove a monitoring device "may be considered an attempt to escape."
While defendant was still ineligible for parole and within the strictures of the "Pre-Parole Home Confinement Program," he was found to have "a positive urine for drugs." The person supervising his program participation was a parole officer employed by the Department of Corrections. On August 1, 1991, the officer advised defendant of the test results and that his case would have to be reviewed by one of the program supervisors. Defendant had been on his way to work that morning, and he asked if he could return his boss's tools to him at a location not far from the officer's office. Defendant was to "come right back" to the office; however, he did not return. The monitoring device revealed that he left the office and went straight home for about half an hour and then fled, missing his 6:30 p.m. curfew. He was declared an escapee, and a warrant was issued for his arrest. He was arrested some time later in Michigan and returned to the State of New Jersey.
N.J.S.A. 2C:29-5a, Escape, provides:
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 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.
In State v. Clay, supra, we concluded that a participant in ISP who fails to abide by the rules and leaves New Jersey is not guilty of the crime of escape under the above statute. ISP was adopted by amendment to R. 3:21-10(e). Under that rule, ISP participants required a change of their custodial sentence for entry into the program. This change was "addressed entirely to the sound discretion of the three-Judge panel assigned to hear them." The three-Judge panel also was vested with "the authority to resentence offenders . . . in the event they fail to perform satisfactorily following entry into the program." R. 3:21-10(e).
In Clay we noted that ISP operated under "a concert of traditionally separated powers," being funded by the Legislature, endorsed by the Executive branch, and operated by the Judiciary. Clay, supra, 230 N.J. Super. at 513, 553 A.2d 1356. We rejected the State's position that ISP is within the scope of the language "any other detention for law enforcement purposes" for several reasons and found "no textual support" for the position that ISP participants were under detention for law enforcement purposes. Id. at 523, 553 A.2d 1356. ISP participants were not under a custodial sentence or detained in any sense as they were in effect on probation and free in the community, albeit under strict supervision. We were unable to find any specific intent by the Legislature to classify "failure in ISP" as an "escape from official detention." Ibid. We noted that the record provided no documentation that defendant was warned that failing ISP would leave him exposed to ...