On appeal from the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 4, 2011
Before Judges Espinosa and Skillman.
Appellant Rogers Kelly appeals from the State Parole Board's final action denying him parole and establishing a 120- month future eligibility term.
Appellant is currently serving a seventy-year term of imprisonment for murder, which was imposed in 1982. Appellant committed this murder only four months after he was paroled while serving his sentence for another murder. Before he committed those two murders, appellant had been convicted of various other offenses, including robbery and assault.
During his incarceration for the second murder, appellant has been found guilty of in excess of twenty disciplinary infractions, including conduct which disrupts, fighting, threatening another with bodily harm, offering staff a bribe, possession or introduction of a weapon, and possession of unauthorized keys.
Before his parole hearing, appellant underwent an in-depth psychological evaluation. The psychologist who conducted this evaluation concluded in a comprehensive report that if appellant were released, "[t]he likelihood that he will continue to act out violently is high," and therefore, he "is a very poor candidate for parole."
The Parole Board gave the following reasons for denying appellant parole:
[P]rior criminal record is extensive and repetitive; nature of criminal record increasingly more serious-inmate paroled on murder charge, committed murder; presently incarcerated for a multi crime conviction; current opportunity on parole was revoked for the commission of a new offense; prior opportunity on parole has failed to deter criminal behavior; prior incarcerations did not deter criminal behavior; lack of an adequate parole plan to assist in successful reintegration into the community; and Prosecutor's objection letter.
The Board also determined, based on appellant's parole interview before a two-member panel of the Board, documentation in his case file, and professional reports, including the psychological evaluation, that appellant "exhibit[s] insufficient problem resolution, specifically, that [he] lack[s] insight into [his] criminal behavior and minimize[s] [his] conduct." On appeal, defendant presents the following arguments:
THREE MEMBER PANEL VIOLATE[D] APPELLANT'S CONSTITUTIONAL RIGHTS WHEN THEY ERRED USING INACCURA[TE] INFORMATION WHEN THEY HELD A "IN ABSENTIA" HEARING OF DECEMBER 17, 2008, PURSUANT TO THEIR OWN LEGISLATIVE LAW AND PROCEDURAL PROVISIONS UNDER N.J.A.C. 10A:71-3.12(a); ...