On April 14, 1989, defendant was convicted of theft and sentenced to a four-year prison term. On December 7, 1989, defendant was released from state prison into the Intensive Supervision Program (ISP). On August 16, 1990, defendant's wife received a note which indicated defendant was leaving the area "for the best of all involved." On August 17, 1990, defendant departed Newark Airport, with a one-way ticket, bound for Denver, Colorado. After being taken into custody in Las Vegas, Nevada on March 31, 1993, defendant was indicted by a Monmouth County Grand Jury for absconding from parole, in violation of N.J.S.A. 2C:29-5 Defendant now moves to dismiss the indictment, contending that he is
charged with an offense which was not a crime on the day the alleged absconding occurred.
Prior to the inclusion of ISP into the term "parole," the New Jersey Supreme Court specifically held that absconding from ISP was not a crime until the Legislature made that conduct a crime. State v. Clay, 230 N.J. Super. 509, 553 A.2d 1356 (App. Div. 1989), aff'd o.b., 118 N.J. 251 (1990); State v. Jiminez, 229 N.J. Super. 256 (App. Div. 1988). N.J.S.A. 2C:29-5, which became effective on February 25, 1991, reads, in pertinent part:
b. Absconding from parole. A person subject to parole commits a crime of the third degree if the person goes into hiding or leaves the State with a purpose of avoiding supervision. As used in this subsection, "parole" includes participation in the Intensive Supervision Program (ISP) . . . .
Defendant claims that a conviction under N.J.S.A. 2C: 29-5 would violate the Federal and State prohibition against ex post facto laws because when he allegedly absconded from ISP, it was not a crime. Although the indictment alleges the absconding occurred on or about August 17, 1990, when defendant left New Jersey, at oral argument the State conceded there could be no offense prior to the effective date of the statute and therefore has moved to amend the indictment to allege that the offense occurred on or about February 25, 1991. Because such an amendment would conform to the evidence and the law, without prejudice or surprise to defendant, the State's motion is hereby granted. See R. 3: 7-4; State v. Bowens, 219 N.J. Super. 290, 294, 530 A.2d 338 (App. Div. 1987).
A motion to dismiss an indictment is addressed to the sound discretion of the trial court. State v. New Jersey Trade Waste Ass'n, 96 N.J. 8, 18-19, 472 A.2d 1050 (1984); State v. Weleck, 10 N.J. 355, 364, 91 A.2d 751 (1952); State v. Bennett, 194 N.J. Super. 231, 234, 476 A.2d 833 (App. Div. 1984). Such discretion should not be exercised except on "the clearest and plainest ground." State v. Weleck, supra, 10 N.J. at 364.
A grand jury may return an indictment if it is supported by a prima facie showing that the accused has committed a crime.
State v. Wilson, 183 N. J. Super. 86, 94, 443 A.2d 252 (Law Div. 1981). However, even though an indictment is presumed valid, "a defendant with substantial grounds for having an indictment dismissed should not be compelled to go to trial to prove the insufficiency." State v. Hill, 166 N.J. Super. 224, 229, 399 A.2d 667 (Law Div. 1978), rev'd on other grounds, 170 N.J. Super. 485, 406 A.2d 1334 (App. Div. 1979), quoting State v. Graziani, 60 N.J. Super. 1, 22, 158 A.2d 375 (App. Div. 1959), aff'd, 31 N.J. 538, 158 A.2d 330 (1960).
The Federal Constitution and New Jersey Constitution prohibit the Legislature from enacting ex post facto laws. U.S Const., art. I, § 10, cl. 1; N.J. Const. (1947), art. IV, § 7 par. 3. Although the phrase "ex post facto " literally means "after the fact," it has long been recognized that the constitutional prohibitions against ex post facto laws apply only to penal statutes which disadvantage the offender. Calder v. Bull, 3 U.S. 386, 3 Dall. 386, 390-392, 1 L. Ed. 648 (1798). See Collins v. Youngblood, 497 U.S. 37, 40, 110 S. Ct. 2715, 2718, 111 L. Ed. 2d 30, 33 (1990); Miller v. Florida, 482 U.S. 423, 430, 107 S. Ct. 2446, 2451, 96 L. Ed. 2d 351, (1987). The purpose of ex post facto clauses is to prohibit the enactment of any law that imposes a punishment for an act that was not punishable at the time it was committed, or that imposes additional punishment to that then prescribed. Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325-26, 18 L. Ed. 356 (1867). This prohibition assures that legislative acts "give fair warning of their effect and permit individuals to rely upon ...