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Shawn Hersey v. New Jersey Department of Corrections

January 9, 2013

SHAWN HERSEY, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.



On appeal from the New Jersey Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 17, 2012

Before Judges Ashrafi and Hayden.

Inmate Shawn Hersey appeals from a final decision of the New Jersey Department of Corrections (NJDOC) rejecting his challenge to a ten percent surcharge added to the costs of personal items he purchases from the prison commissary. Hersey contends the surcharge violates his rights under the constitution and laws of New Hampshire, the state in which he was convicted and sentenced to prison. We affirm.

The ten percent surcharge is required by N.J.S.A. 30:4-15.1. The revenue it generates is slated for the Victims of Crime Compensation Board (VCCB), N.J.S.A. 2C:43-3.1, 52:4B-1 to -25.1. Under the same statute, prison commissary sales are exempt from New Jersey sales tax. N.J.S.A. 30:4-15.1.

Hersey argues that the statute cannot apply to him because he was not convicted of a crime in New Jersey. In 2003, Hersey pleaded guilty in New Hampshire to four charges of aggravated sexual assault. He was sentenced in that state to a minimum of twelve and a maximum of twenty-seven years in prison.*fn1 In December 2005, Hersey was transferred from a New Hampshire prison to serve his sentence under the supervision of NJDOC at the Adult Diagnostic and Treatment Center in Avenel, New Jersey. The transfer was authorized by the Interstate Corrections Compact, N.J.S.A. 30:7C-1 to -12; N.H. Rev. Stat. Ann. § 622-B, and it was subject to a contract between the prison systems of the two states executed in 2002.

In July 2011, still in custody in New Jersey, Hersey filed a formal administrative request with prison officials challenging the deduction of commissary surcharges from his inmate account. He claimed that the surcharge as applied to him is unconstitutional under New Hampshire law, which must be applied to the service of his prison sentence. His formal request to exempt his prison account from the surcharge was denied by a written decision of NJDOC administration on August 20, 2011. His further administrative appeal was denied by NJDOC on August 24, 2011.

Hersey then filed this appeal before us, arguing:

POINT I

THE APPELLANT IS GOVERNED BY THE LAWS OF THE SENDING STATE.

POINT II

SIMILARLY SITUATED NEW HAMPSHIRE CITIZENS ARE NOT SUBJECTED TO THE VCCB ...


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