a substantial period of time in order to evade parole
supervision).
V. DEFENSES
N.J.S.A. 2C:29-5d provides a limited defense to an
escape prosecution. An irregularity in bringing about or
maintaining detention, or the lack of jurisdiction of the
committing or detaining authority, however, is not a
defense to prosecution of the offense of escape if the escape
is from a prison or other custodial facility or from
detention pursuant to commitment by official
proceedings. N.J.S.A. 2C:29-5d. In the case of other
detentions, either an irregularity or lack of jurisdiction is
a defense only where:
- the escape involved no substantial risk of harm to
any other person or property; or - the detaining authority did not act in good faith
under color of law.
Generally, irregularities in detention are not a
defense to escape. See State v. Casimono, 250 N.J. Super.
173, 182-185 (App. Div. 1991), certif. denied, 127 N.J.
558 (1992) and State v. Battle, 256 N.J. Super. 268 (App.
Div.), certif. denied, 130 N.J. 393 (1992) (escape charge
will lie notwithstanding the illegality of the arrest); see
also State v. Brown, 239 N.J. Super. 635 (App. Div. 1990)
(discussing imposition of such a defense when a
defendant fled from the scene of a traffic stop).
Where defendant claims a defense of duress or
necessity based on alleged unhealthy or unsafe jail
conditions, defendant must make a bona fide effort to
return to custody once he has removed himself from those
conditions to assert the defense. United States v. Bailey,
444 U.S. 394 (1980); see generally State v. Stewart, 196
N.J. Super. 138 (App. Div. 1984). In State v. Saxon, 226
N.J. Super. 653 (Law Div. 1988), aff’d sub nom. State v.
Morris, 242 N.J. Super 532 (App. Div. 1990), certif.
denied, 127 N.J. 321 (1992), the court followed the
holding of United States v. Bailey, 444 U.S. 393 (1980)
in determining that defense of duress was unavailable to
a defendant who failed to make a bona fide effort to
surrender or return to custody. State v. Saxon also limits
the defense to situations involving imminent serious
bodily harm or sexual assault and the like, not bad prison
conditions and hypothetical or statistical danger.
VI. DOUBLE JEOPARDY
Double jeopardy does not preclude prison
authorities from imposing administrative penalties in
addition to defendant’s sentence for escape. State v.
Hatterer, 75 N.J. Super. 400 (App. Div. 1962); see also,
State v. Soriano, 107 N.J. Super. 286 (App. Div. 1968),
aff’d o.b. 54 N.J. 567 (1964).Defendant’s prosecution for absconding from parole,
subsequent to parole revocation for substantially the
same conduct, did not violate double jeopardy; parole
revocation was remedial and rehabilitative and could not
be viewed as “punishment” triggering double jeopardy
protections, State v. Eisenman, 153 N.J. 462 (1998).Double jeopardy did not bar prosecution of
defendant for absconding from parole after his parole was
revoked and he was ordered to serve his adjusted
maximum sentence; defendant was not punished twice
for the same offense, since revocation of parole was not
punishment. State v. Black, 295 N.J. Super. 453, 685
A.2d. 485 (A.D. 1996), aff’d 153 N.J. 438 (1998).VII. ESCAPE PENDING APPEAL OF CONVIC-
TION
Escape by a defendant from his place of confinement
during the pendency of his appeal required dismissal of
his appeal. State v. Rogers, 90 N.J. 418 (1982).