STATE OF NEW JERSEY v. ANTONIO R. JOHNSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1858-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTONIO R. JOHNSON a/k/a ROSSI-

JOHNSON ROSSI,

Defendant-Appellant.

_________________________________

May 17, 2012

Submitted April 16, 2012 - Decided

Before Judges Parrillo and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Cape May County,

Indictment No. 08-10-0847.

Joseph E. Krakora, Public Defender,

attorney for appellant (Ingrid A.

Enriquez, Designated Counsel, on the

brief).

Robert L. Taylor, Cape May County

Prosecutor, attorney for respondent

(J. Vincent Molitor, Assistant Prosecutor,

of counsel and on the brief).

PER CURIAM

Defendant Antonio R. Johnson appeals from a conviction for violating conditions of his parole supervision for life without good cause, a crime of the fourth degree. N.J.S.A. 2C:43-6.4d. The indictment included one count alleging defendant failed to report to his parole officer, submit to drug tests and participate in a program at Cape Counseling (Cape), which were conditions of his parole. Defendant was tried to the court. The judge denied defendant's motion for judgment of acquittal at the conclusion of the State's case. At the conclusion of the defense case, the judge found that defendant had violated all three conditions without good cause and ultimately sentenced defendant to a term of incarceration equivalent to the period he had spent in jail pending trial and sentencing, 309 days, and imposed the minimum penalties and assessments.

Defendant raises two issues for our consideration:

I. The evidence at trial demonstrated that

treatment was voluntary; and enforcing it as mandatory deprived defendant of the right to due process of law and a fair trial. U.S.Const. Amend XIV; N.J. Const. (1947) Art. I, Pars. 1, 9, 10.

II. The State failed to prove beyond a

reasonable doubt that defendant violated the Community Service [sic] for Life Provisions as set forth in N.J.S.A. 2C:43-6.4d; consequently the conviction on count one must be vacated.

Defendant committed sexual assault qualifying him for mandatory supervision for life in 1995 and was convicted in 1996. Counselor Lorraine Denoro spoke with defendant prior to his release from prison at the expiration of his sentence on April 17, 2000. During a meeting with defendant, Denoro went over the conditions defendant was obligated to follow, and he signed the form setting forth those conditions, indicating his understanding.

Following his release, defendant was initially supervised by the district parole office in Vineland and subsequently by the district parole office in Atlantic City. One of the conditions defendant was obligated to follow was "to report to the assigned parole officer as instructed." Defendant failed to report to his parole officer on January 17, 2008. The officer mailed a letter to defendant's address directing him to report on January 25, but defendant did not appear on that date either. On February 23, the officer visited the motel where defendant was living, spoke with the "landlord" and left a letter directing defendant to report at 10:00 a.m. on February 27. Defendant arrived at 11:13 a.m. on February 27, despite the fact that the officer had warned him that a late appearance was equivalent to failing to report as directed. Defendant also failed to report on July 16, 23 and 30. The officer had given defendant notice of the July 30, 2008 date in person during a visit to his residence days before.

A second condition of defendant's supervision required him "to submit to drug or alcohol testing at any time as directed by the assigned parole officer." According to his parole officer, that testing is routinely done when a supervisee reports to the parole officer. The charges for refusal to submit to tests were based on defendant's failure to report on the date set forth above.

A third condition of defendant's supervision was stated as follows:

I am to be evaluated by a mental health program designated by the district parole office, and upon completion of the evaluation I am to comply with the recommended course of treatment, counseling, and therapy. . . .

As stated, proof of a violation requires evidence that a defendant was evaluated by a mental health care program designated by the district parole office and evidence that the evaluator recommended a course of counseling with which defendant did not comply.

Although defendant's counselor at Cape testified that he missed appointments in March and April 2008, the State presented no competent evidence to establish that defendant had been evaluated by a mental health care program designated by the district office or that a course of counseling had been recommended at the conclusion of such an evaluation. Defendant's parole officer testified that based on his review of the file obtained from the Vineland parole district, "[t]here was never any doubt in [his] mind whatsoever that [defendant] was referred to" Cape. That file, however, was not produced or offered as evidence by the State. His counselor testified that based on her review of her agency's business records, she knew that defendant was referred by parole, but she did not produce the records or any other document reflecting the referral. The judge sustained defense counsel's objection to that testimony. Defendant's parole officer testified that during his first meeting with defendant, defendant told him he was attending "Cape Counseling Services." Thereafter, the officer monitored his compliance.

Defendant testified that his parole officer was mistaken about the reasons for his attendance at Cape. According to him, the Vineland district parole office did not refer him to Cape. He explained that the district had sent him to Dr. Ackley and subsequently directed treatment with him.

According to defendant, he was referred to Cape on being discharged from inpatient treatment for stress. He had sought that treatment on his own and not as a result of an evaluation obtained by parole or a referral by Dr. Ackley.

We first consider defendant's objections to the adequacy of the State's evidence. He claims that the court erred in denying his motion for a judgment of acquittal at the close of the State's case. A defendant in a criminal case is entitled to a judgment of acquittal if the evidence and inferences, viewed in the light most favorable to the State, is insufficient to permit a jury to find each and every element of the offense beyond a reasonable doubt. Jacksonv. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560, 573 (1979); State v. Reyes, 50 N.J. 454, 458-59 (1967). The standard requires consideration of the adequacy of the proofs on each element of the crime.

This crime is defined to require proof that the person charged "violate[d] a condition of a special sentence imposed pursuant to this section without good cause is guilty of a crime of the fourth degree." N.J.S.A. 2C:43-6.4d. By operation of N.J.S.A. 2C:2-2c(3), proof that defendant "knowingly" violated the condition of the special sentence is required. In this case, the State was required to prove that defendant knowingly violated at least one of the three conditions specified in the indictment.

Even with the benefit of all reasonable inferences, the State's evidence was not adequate to prove beyond a reasonable doubt that defendant knowingly violated his obligation to submit to a drug test or knowingly failed to comply with a course of counseling recommended by a mental health program designated by the district parole office. Other than the parole officer's generalized testimony about testing, there was no evidence establishing the frequency or results of defendant's drug or alcohol tests from which one could infer that his missing a reporting appointment amounted to a knowing refusal to submit to a drug or alcohol test. The proof of his violation of the counseling condition was similarly flawed. The essential proof that defendant was referred to Cape Counseling on the recommendation of a mental health care program designated by the district parole office was lacking.

Because we conclude that defendant's conviction cannot be based on his failure to attend counseling, it is not necessary to address the constitutional issue raised in the first point of his brief on appeal. It suffices to note that this condition of community supervision does not permit a parole officer to decide that counseling is required in the absence of a recommendation from a mental health care program.

Our agreement with defendant on the inadequacy of the State's evidence related to counseling and drug testing does not require a reversal of his conviction. As noted above, the judge found defendant violated a third condition failure to report to his parole officer as directed without good cause. The State's evidence was adequate to prove a violation of that condition on July 30. On July 26 the parole officer personally directed defendant to report on July 30, and defendant did not. He was, however, able to report one day later. Because the State's evidence on this violation was constitutionally adequate, and because the judge's finding of guilt based on this violation is adequately supported by substantial credible evidence in the record, we affirm. State v.Locurto, 157 N.J. 463, 470-71 (1999) (quoting Statev. Johnson, 42 N.J. 146, 161-62 (1964)).

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