On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 08-10-0847.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Grall.
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 ...