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Major Holmes v. New Jersey State Parole Board

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 14, 2012

MAJOR HOLMES, APPELLANT,
v.
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.

On appeal from the New Jersey State Parole Board.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 7, 2012

Before Judges Reisner and Simonelli.

Appellant Major Holmes appeals from the September 29, 2010 decision of defendant New Jersey State Parole Board (Board) to revoke his mandatory parole supervision and impose a ten-month future eligibility term (FET). We affirm.

The record reveals that Holmes pled guilty to second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), and third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1). On March 24, 2006, he was sentenced to concurrent five-year terms of imprisonment on each charge. On the aggravated assault charge, he was sentenced under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to an eighty-five percent period of parole ineligibility and three years of mandatory parole supervision upon his release from custody.

Holmes was released from custody on July 15, 2009, and began serving his three-year period of mandatory parole supervision. As a condition of parole, Holmes had to obey all laws and ordinances and refrain from purchasing, possessing, or using alcohol, among other things. Because of a final domestic violence restraining order that had been issued against Holmes, he was also subject to a special condition requiring him to participate and complete the Electronic Monitoring Program (EMP).

On October 17, 2009, Holmes called the EMP Response Team to request an alternative placement due to a dispute with his brother, with whom he resided. Parole Officers Abrahamsen and Williams went to the residence in an effort to relocate Holmes. When they arrived, they saw that Holmes was under the influence of alcohol, "reeked of alcohol," and smelled of urine. Holmes admitted to drinking alcohol, but refused to sign an "Admission of Use" form. He became loud and aggressive, refused to sit down as instructed by the officers, and, as a result, was handcuffed for the officers' safety. He then pulled away from the officers, pushed Officer Abrahamsen in the direction of the kitchen, where knives were located, and struggled with and started kicking Officer Abrahamsen, prompting Officer Williams to strike Holmes on his arm with a baton. Holmes then became compliant and was transported to the Elizabeth Police Department, where charges were filed against him for aggravated assault and resisting arrest. In addition, Holmes was discharged from the EMP because of the incident. As a result, the Board charged him with violating the condition of his parole that he participate in and complete the EMP.

On October 20, 2009, Holmes was served with a notice of probable cause hearing, which advised him of his rights, and the charge of violating a condition of parole by failing to participate in and complete the EMP, among other things. Holmes, who was represented by an attorney, waived the probable cause hearing, and proceeded to a revocation hearing at which he testified. Officers Abrahamsen and Williams also testified and were cross-examined by Holmes's attorney. The hearing officer found the officers' testimony credible, and concluded that the evidence clearly and convincingly warranted revocation of parole because Holmes had violated the condition that he participate in and complete the EMP. The hearing officer recommended revocation of parole and imposition of a ten-month FET.

On February 3, 2010, a two-member Board panel concurred with the hearing officer's findings, but rejected his recommendation and remanded the matter for additional findings as to whether Holmes had also violated other conditions of parole. The panel concluded that the evidence suggested there were other violations of the conditions of parole "that would speak to the question of seriousness or persistence."

On February 3, 2010, Holmes was served with a second notice of probable cause hearing, which again advised him of his rights and the additional charge of violating a condition of parole by failing to obey all laws and ordinances and to refrain from purchasing, possessing, or using alcohol, among other things. Holmes, who was represented by the same attorney, waived the probable cause hearing, and proceeded to a revocation hearing at which he testified. Officers Abrahamsen and Williams also testified and were cross-examined by Holmes's attorney. The hearing officer found the officers' testimony credible, and concluded that the evidence clearly and convincingly warranted revocation of parole, because when he assaulted Officer Abrahamsen, Holmes had violated the condition that he must obey all laws and ordinances, and he had also violated the condition requiring him to refrain from using alcohol. The hearing officer recommended revocation of parole and imposition of a ten-month FET.

On May 12, 2010, a two-member Board Panel concurred with the hearing officer's findings and adopted his recommendation. Holmes administratively appealed the panel's decision to the Board, and the Board affirmed. This appeal followed.

On appeal, Holmes contends that he was denied due process, and denied an opportunity to both confront adverse witnesses and rebut the evidence presented. He also contends that the hearing officer failed to properly address his problems with alcohol abuse, or consider that Holmes was not tested for alcohol. We have considered these contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We are satisfied that there is sufficient credible evidence in the record as a whole supporting the Board's decision, and the decision is entitled to our deference. Trantino v. N.J. State Parole Bd., 166 N.J. 113, 172-73 (2001).

Affirmed.

20120214

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