BENJAMIN NUDGE v. NEW JERSEY STATE PAROLE BOARD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3216-06T23216-06T2

BENJAMIN NUDGE,

Appellant,

v.

NEW JERSEY STATE

PAROLE BOARD,

Respondent.

 
Argued Telephonically November 17, 2008 - Decided

Before Judges Winkelstein and Chambers.

On appeal from a final decision of the New Jersey State Parole Board.

Kelly Anderson Smith argued the cause for appellant (Ms. Smith, attorney; Charles H. Landesman, on the brief).

Christopher C. Josephson, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Josephson, on the brief).

PER CURIAM

Appellant, Benjamin Nudge, is an inmate at Northern State Prison in Newark. On January 16, 2007, the New Jersey State Parole Board affirmed a three-member panel's decision denying parole to appellant and establishing a sixty-month parole future eligibility term (FET). On September 6, 2007, following an appeal to this court, on motion by the Parole Board, we remanded to the Parole Board for additional proceedings. On October 17, 2007, a three-member panel issued a fifteen-page amended decision, again denying parole and imposing a sixty-month FET.

On appeal, appellant raises the following seven points for our consideration:

POINT I

THE PAROLE BOARD ERRONEOUSLY PREMISED ITS DECISION ON THE ASSUMPTION THAT NUDGE WAS SERVING AN INDETERMINATE SENTENCE IMPOSED IN 1978 WHEN IN FACT HE WAS MAXED OUT ON THIS SENTENCE AND IS SERVING THE SENTENCE IMPOSED IN 1985. (NOT RAISED BELOW).

POINT II

NUDGE DID NOT VIOLATE HIS PAROLE BY FAILING TO ADHERE TO HIS CURFEW AND BY FAILING TO REFRAIN FROM ALCOHOL USAGE. NUDGE IS CLAIMING ACTUAL INNOCENCE OF VIOLATING PAROLE.

POINT III

THE PAROLE BOARD'S FINDINGS THAT NUDGE HAS NOT BENEFITED FROM THE OPPORTUNITIES ON COMMUNITY SUPERVISION AND THIS FAILED TO DETER HIS CRIMINAL BEHAVIOR IS ERRONEOUS. NUDGE DID NOT ENGAGE IN ANY CRIMINAL ACTIVITY WHILE LAST ON PAROLE.

POINT IV

THE BOARD PANEL FAILED TO DOCUMENT THAT A PREPONDERANCE OF THE EVIDENCE INDICATES A SUBSTANTIAL LIKELIHOOD THAT NUDGE WILL COMMIT A CRIME IF RELEASED ON PAROLE.

POINT V

THE RECORD DOES NOT SUPPORT THE CONCLUSION THAT NUDGE'S FAILURE TO ADMIT HIS GUILT OF THE 1985 OFFENSES MAKES HIM A LIKELY RECIDIVIST.

POINT VI

THE IMPOSITION OF A SIXTY (60) MONTH PAROLE FUTURE INELIGIBILITY TERM BY THE THREE MEMBER PANEL WAS EXCESSIVE AND BASED ON ERRONEOUS FACTS.

POINT VII

THE IMPOSITION OF A SIXTY (60) MONTH PAROLE FUTURE INELIGIBILITY TERM BY THE THREE MEMBER PANEL WAS CONTRARY TO N.J.A.C. 10A:71-7.17(b) AND N.J.A.C. 10A:71-7.17(f)(6).

In addressing these arguments, we apply the well-settled principle that parole board determinations are not to be reversed unless they are arbitrary or an abuse of discretion. Trantino v. N.J. State Parole Bd., 154 N.J. 19, 25 (1998). The standard for parole at the time appellant committed his offenses was whether there was "a substantial likelihood that the inmate will commit a crime under the law of this State if released on parole." Id. at 27 (quoting N.J.S.A. 30:4-123.56c (amended 1997)). In determining whether this standard has been met, we examine the record and determine whether the agency's findings could reasonably have been reached from the credible evidence in the record. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). Unless the parole board "'went so far wide of the mark that a mistake must have been made[,]'" its decision must not be disturbed. N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.) (quoting 613 Corp. v. State of N.J., Div. of State Lottery, 210 N.J. Super. 485, 495 (App. Div. 1986)), certif. denied, 111 N.J. 649 (1988).

Applying these standards, we affirm substantially for the reasons set forth in the amended decision of October 17, 2007. Appellant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D), (E). We address only appellant's first point on appeal, that the parole board erroneously premised its decision on appellant's 1978 sentence, rather than his 1986 sentence.

In March 1978, appellant was convicted in Union County of multiple offenses, including the rape of a thirteen-year-old girl. On June 23, 1978, the court sentenced him to an indeterminate thirty-year prison term. On January 11, 1983, appellant was released on parole.

On October 17, 1985, appellant was arrested and subsequently indicted in Atlantic County for multiple offenses, including armed robbery, aggravated assault and possession of a weapon. After a jury convicted appellant of the new charges, on May 15, 1986, the court sentenced him to an aggregate prison term of twenty-five years with an eight-year period of parole ineligibility. On June 13, 1988, appellant was resentenced on the Atlantic County convictions to an aggregate twenty-year prison term with a seven-year period of parole ineligibility.

Prior to the latter sentencing dates, on December 19, 1985, a parole violation warrant was issued for appellant as a result of the new charges. Although a parole violation hearing was scheduled for March 3, 1986, at appellant's request that hearing was postponed. His parole violation hearing was ultimately conducted on March 19, 1993; on April 14, 1993, the parole board formally revoked his parole for his 1978 thirty-year indeterminate prison term. That revocation was effective retroactively to January 11, 1983, the date he had been released on parole.

Against this procedural history, appellant claims that the parole board erred by evaluating his current eligibility for parole on his 1978 convictions, rather than his 1986 convictions. We reject that argument.

A sentence for a crime committed while on parole runs consecutive to any period of imprisonment required to be served upon revocation of parole, unless the sentencing court orders the sentences to run concurrently. N.J.S.A. 2C:44-5c. Here, defendant's Atlantic County judgment of conviction does not indicate that the sentences imposed were to be served concurrent with his parole violation time. Consequently, the aggregate Atlantic County sentence and the balance of the time owed for his parole violation on the 1978 convictions were to be served consecutive to each other.

The order in which an inmate serves the sentences is determined as follows. According to procedures that have been in effect since July 1986, when the Department of Corrections (DOC) receives notice from the parole board that an offender's parole status has been revoked, the DOC adds the balance of time remaining on the prior sentence to the maximum date on the new sentence to arrive at a new aggregate maximum date. Thus, here, the Atlantic County sentence, originally imposed on May 15, 1986, was served first because appellant's parole status on the 1978 convictions had not been revoked prior to that date. Consequently, the balance of appellant's indeterminate thirty-year prison term was served upon completion of the aggregate Atlantic County sentence, which expired on October 28, 1996. In other words, at the time of the parole hearing at issue here, appellant was serving the balance of the thirty-year indeterminate term imposed as a result of his 1978 conviction. Thus, his argument that the parole board erred by considering his 1978 convictions, rather than his 1986 convictions, is not supported by the record. Appellant's arguments to the contrary are not of sufficient merit to warrant additional discussion. R. 2:11-3(e)(1)(E).

Affirmed.

 

At oral argument before this court on November 17, 2008, we requested the parole board to submit additional materials concerning the procedures the State follows when an inmate is serving consecutive sentences, including a sentence that encompasses a parole violation. We permitted appellant's attorney to respond to the State's submissions. We have received and reviewed the additional materials.

(continued)

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A-3216-06T2

January 8, 2009