Opinion
DOCKET NO. A-4754-13T3
05-12-2016
KENNETH SMITH-HARPER, Appellant, v. NEW JERSEY STATE PAROLE BOARD, Respondent.
Kenneth Smith-Harper, appellant pro se. Robert Lougy, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and O'Connor. On appeal from the New Jersey State Parole Board. Kenneth Smith-Harper, appellant pro se. Robert Lougy, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief). PER CURIAM
Kenneth Smith-Harper, an inmate currently housed at New Jersey State Prison, appeals from the Parole Board's September 25, 2013 final agency decision upholding the revocation of his parole and directing that he must serve the balance of his mandatory parole supervision term in custody.
In April 2003, appellant pled guilty to first-degree robbery, N.J.S.A. 2C:15-1. The guilty plea was pursuant to an agreement in which the State agreed to dismiss the other four counts of the indictment, including aggravated criminal sexual contact. The robbery involved appellant's attack of a female employee at a casino in Atlantic City on February 17, 2002, who appellant punched and held at knifepoint before she broke free. Consistent with the plea agreement, the criminal judge sentenced defendant to a custodial term of ten years for the robbery, subject to the terms of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. In adherence to the requirements of NERA, the court imposed upon appellant a five-year period of mandatory parole supervision upon his release from custody. See N.J.S.A. 2C:43-7.2(c).
Appellant was released from custody on the robbery conviction on July 12, 2011. At that time he was advised in writing of the conditions of his supervision. Less than a month later on August 1, 2011, a female employee of a county library reported to the police that appellant had inappropriately touched her buttock and breast in front of the library that morning. Appellant was apprehended later that day and admitted to the police that he had touched the victim's buttock and had said "inappropriate things" to her.
As a result of this episode, appellant was charged with criminal sexual contact, N.J.S.A. 2C:14-2(c). On September 6, 2012, appellant pled guilty to that charge and was sentenced to nine months in the county jail.
Meanwhile, a parole violation warrant had been issued for appellant, which resulted in his arrest for violating the conditions of his mandatory supervision. He was served with a notice of probable cause and a parole revocation hearing was scheduled after the criminal prosecution was completed.
On February 5, 2013, the agency held the revocation hearing, at which appellant appeared and was represented by counsel. Although appellant claimed that the library employee had solicited him for sex and was under the influence of drugs and alcohol, the hearing officer concluded by clear and convincing evidence that appellant had violated the terms of his parole supervision by failing to obey all laws and ordinances. In particular, the hearing officer duly noted appellant's prior 2012 conviction for criminal sexual contact involving the library employee following his plea of guilty to that offense. Observing that appellant had violated his parole supervision requirements in a serious manner so soon after being released from prison, the hearing officer recommended that appellant's parole be revoked and that he serve the remaining four years, eight months, and nine days of his parole supervision period in custody.
Appellant administratively appealed the hearing officer's ruling. A two-member Board panel sustained the ruling, as did the full Board. In its final agency decision, the Board declared appellant's legal and factual arguments to be without merit, and rejected his request for relaxation of the penalty.
In his appeal to this court, appellant argues:
POINT ONE
PETITIONER'S RIGHTS TO DUE PROCESS WERE VIOLATED WHEN A PAROLE BOARD CONTINUES TO ARBITRARILY AND UNCONSTITUTIONALLY REQUIRE EXCESSIVELY UNGUIDED SERVICE OF A MAXIMUM TERM IN STATE PRISON WITHOUT SETTING REASONABLE FETS WITHIN THE PRESUMPTIVE RANGE. (Partially Raised Below).
POINT TWO
THE NEW JERSEY STATE PAROLE BOARD'S DECISION TO PLACE A DETAINER UPON THE DEFENDANT STRIPPED THE SUPERIOR COURT JUDGE OF THE POWER TO GRANT BAIL PRIOR TO ADJUDICATION ON THE ACCUSATIONS LODGED AGAINST THE PETITIONER IS TANTAMOUNT TO A VIOLATION OF DUE PROCESS. (Partially Raised Below).
Having fully considered these points in light of the record and the applicable law, we discern no merit to appellant's contentions. In doing so, we accord considerable deference to the expertise of the Parole Board in its administration of the laws and regulations within its purview. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002). Given the nature of appellant's criminal sexual offense, committed so soon after his release from prison for a first-degree crime, there was nothing arbitrary or illegal about the Board requiring appellant to serve the balance of his mandated period of parole supervision in custody. See N.J.S.A. 30:4-123.51b(a) (authorizing the parole board to revoke the parole release status of violators of parole supervision and order they serve the remainder of their terms in custody); N.J.A.C. 10A:71-3.54(i). In addition, the agency clearly had the authority to issue a warrant for his arrest after he was charged with a new criminal offense in August 2011 that easily raised concerns about endangerment to public safety. See N.J.S.A. 30:4-123.62(a)(1).
All other arguments raised in appellant's brief lack sufficient merit to deserve comment. R. 2:11-3(e)(1)(D) and (E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION