On appeal from Superior Court of New Jersey, Law Division, Monmouth County.
Approved for Publication October 6, 1995.
Before Judges Petrella, Skillman and P.g. Levy. The opinion of the court was delivered by Skillman, J.A.D.
The opinion of the court was delivered by: Skillman
The opinion of the court was delivered by SKILLMAN, J.A.D.
This appeal from the dismissal of an indictment based on insufficiency of evidence requires us to decide what conduct may constitute "absconding from parole" by "going into hiding," in violation of N.J.S.A. 2C:29-5(b).
The Legislature amended the Code of Criminal Justice in 1991 by creating a new offense, entitled "absconding from parole." L. 1991, c. 34, § l. The section defining this offense provides in pertinent part:
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. ... Abandoninga place of residence without the prior permission of or notice to the appropriate supervising authority shall constitute prima facie evidence that the person intended to avoid such supervision.
Thus, the offense of absconding from parole consists of two elements: (1) the act of "going into hiding or leaving the State," and (2) the intent of "avoiding [parole] supervision." (Emphasis added.) The "abandoning [of] a place of residence" without prior permission or notice provides "prima facie evidence" of only the second element of this offense.
The only witness who testified before the grand jury that indicted defendant was his parole officer, who testified that defendant left the residential drug rehabilitation facility to which he had been paroled and "went missing" on October 30, 1993. The parole officer became aware of defendant's absence from this facility on November 18, 1993, and spoke to him by telephone on November 30, and December 30, 1993. The officer directed defendant to "turn himself in," but defendant failed to do so. The officer also testified that while defendant could not be found at his normal residence, law enforcement officers located him on the streets of Asbury Park on four different occasions between December 6, 1993 and April 14, 1994. Defendant eluded apprehension each time.
The trial court granted defendant's motion to dismiss the indictment, concluding that the testimony presented to the grand jury did not establish a "prima facie case" of a violation of N.J.S.A. 2C:29-5(b):
I am not convinced defendant went into hiding. He was seen on the streets and ran.
We conclude that the State presented prima facie evidence to the grand jury that defendant absconded from parole by "going into hiding" and therefore reverse the dismissal of the indictment. *fn1
N.J.S.A. 2C:29-5(b) does not contain any definition of "absconding" or "hiding." However, both terms have well established meanings in common usage. Webster's International Dictionary defines "abscond" as "withdraw, flee; ... to depart secretly: withdraw and hide oneself; ... to evade the legal process of a court by hiding within or secretly leaving its jurisdiction." Webster's Third New International Dictionary 6 (1981). The dictionary definition of "hiding" is similar. Webster's indicates that the most common definition of "hiding" is "the act or action of ...