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State v. Nellom

December 17, 2003

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RICHARD NELLOM, DEFENDANT-APPELLANT.



SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The question presented in this appeal is whether the issuance of an arrest warrant for a violation of probation constitutes "commencement" of a revocation proceeding that tolls the probationary period under N.J.S.A.

2C:45-3c.

In 1995, Richard Nellom entered a plea of guilty to third-degree receipt of stolen property. In exchange, the State recommended probation. At sentencing, the trial court imposed a three-year probationary term that was to terminate in 1998, along with mandatory fees and penalties.

When Nellom failed to pay his financial obligations, the trial court ordered him to appear on May 30, 1996. He did not do so and the court issued a bench warrant for his arrest. The arrest record suggests that prior to the ordered appearance, Nellom had relocated out of State. He was arrested several times in North Carolina between May 1996 and July 1999, and twice in New York in late 2000.

The court issued an arrest warrant for Nellom on November 4, 1996, for violating the terms of probation, based on his continued failure to report. Nellom remained at large until his arrest on January 11, 2001, at which time the court set bail and the outstanding warrant was vacated. Two weeks later, on January 25, 2001, the probation department filed and served on Nellom a document entitled a "Violation of Probation - Statement of Charges." That document alleged that Nellom had neglected to report to the probation office as directed and failed to pay courtimposed financial obligations.

Nellom filed a motion to dismiss, claiming that the statement of charges was untimely because it was not filed prior to the expiration of the probationary term. The trial court denied the motion, concluding that the issuance of the arrest warrant in November 1996 constituted "commencement" of probation revocation proceedings within the meaning of N.J.S.A. 2C:45-3c and thus tolled the probationary period.

Nellom entered a plea of guilty to the violation of probation charge. He acknowledged that he failed to report to his probation officer as required, and remained a fugitive thereafter, and that he was not paying the monetary penalties that had been imposed. On May 22, 2001, the trial court vacated Nellom's probation and sentenced him to a custodial term of three years on the original charge of receiving stolen property.

The Appellate Division affirmed on appeal, holding that Nellom was barred by his unconditional plea from challenging the temporal validity of the violation of probation proceedings. It also held that the trial court had jurisdiction to accept Nellom's plea even if the commencement of the proceedings was untimely. The Supreme Court granted Nellom's petition for certification.

HELD The filing of an arrest warrant is one valid method to commence probation revocation proceedings and thus toll the probationary period.

1. On its face, N.J.S.A. 2C:45-3 provides that probation revocation proceedings must be commenced within the

probationary period. Likewise, the statute is clear that commencement of probation revocation proceedings tolls the probationary period until the proceeding is terminated. What the statute does not say in so many words is exactly what constitutes "commencement." The statute does set forth actions that may be taken against an errant probationer prior to the end of the probation period. The court may summon the defendant to appear or issue a warrant for his arrest. In addition, a probation officer or peace officer may arrest the probationer if the officer has probable cause to believe he has violated his probation or committed another offense. These initiatives are intended to notify defendant that he is being charged with violating probation and to bring him before the court. Although not specifically denominated as such, those authorized initiatives are obviously what were being referenced in the tolling section of the statute. (pp. 5-8)

2. Several Appellate Division decisions shed light on the question of commencement for tolling purposes. With one exception, these cases recognize that commencement for tolling must be an act that is statutorily authorized. At the heart of the scheme is the notion that a probation revocation proceeding is commenced when formal processes to notify defendant and bring him or her before the court are set in motion. The legislature has declared that that occurs when the court issues an arrest warrant or summons a defendant to appear or when a defendant is arrested without a warrant thus precipitating a court proceeding. The Appellate Division decision holding that the mere filing of a violation of probation notice, without more, is sufficient for tolling, is disapproved. (pp. 8-13)

3. Nellom argues that the proceedings were defective because he was entitled to "actual" notice of his violation within the probationary period. To be sure, defendants charged with a violation of probation must be accorded due process. N.J.S.A. 2C:45-4 requires notice and a hearing before revocation of probation or modification of the conditions of probation. However, it does not mandate a timeframe for the provision of defendant's due process rights. The only temporal limitation is that the notice be given as soon as possible and in sufficient time to allow a defendant to prepare and launch a defense. Nellom's reading of the statute - that notice must be "effected" within the probationary term - would reward an absconder who moves without leaving a forwarding address, in contravention of the conditions of probation. Such an individual could thus thwart service, allowing the probationary term to expire, and avoid not only the conditions imposed by the sentencing court but a revocation proceeding as well. That is not what the statute intends. So long as formal action authorized by the statute including the issuance of a warrant or summons or the arrest of the defendant occurs prior to the expiration of the period of probation, that period is tolled under N.J.S.A. 2C:45-3c. (pp. 13-15)

Judgment of conviction is AFFIRMED. This ruling makes it unnecessary for the Court to address the procedural issues relied on by the Appellate Division.

CHIEF JUSTICE PORITZ and JUSTICES VERNIERO, LaVECCHIA, ZAZZALI, ALBIN and WALLACE join in JUSTICE LONG's opinion.

The opinion of the court was delivered by: Justice Long

Argued October 8, 2003

On this appeal, we have been asked to construe N.J.S.A. 2C:45-3c, a statute that provides for the tolling of a probationary period upon "commencement" of a revocation proceeding. The question presented is whether the issuance of an arrest warrant for a violation of probation constitutes "commencement" for tolling purposes under the statute. We hold that the filing of an arrest warrant is one valid method to commence probation revocation proceedings and thus toll the relevant probationary period.

I.

In 1995, defendant Richard Nellom entered a plea of guilty to third-degree receipt of stolen property, contrary to N.J.S.A. 2C:20-7a. In exchange, the state recommended probation. At sentencing, the trial court imposed a three-year probationary term which was to terminate in 1998, ...


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