NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4695-15T3
HAFIZ JOSEY,
Appellant,
v.
NEW JERSEY STATE PAROLE BOARD,
Respondent.
________________________________
Submitted July 11, 2017 – Decided October 12, 2017
Before Judges Nugent and Accurso.
On appeal from the New Jersey State Parole
Board.
Hafiz Josey, appellant pro se.
Christopher S. Porrino, Attorney General,
attorney for respondent (Lisa A. Puglisi,
Assistant Attorney General, of counsel;
Gregory R. Bueno, Deputy Attorney General, on
the brief).
PER CURIAM
Plaintiff Hafiz Josey appeals from a May 18, 2016 final
administrative decision of the New Jersey State Parole Board
("Board") revoking his parole and imposing a thirteen-month Future
Eligibility Term ("FET"). We affirm.
In 2008, defendant pleaded guilty to first-degree robbery,
N.J.S.A. 2C:15-1, and second-degree aggravated assault, N.J.S.A.
2C:12-1(b)(1). A judge sentenced defendant on the robbery offense
to a twelve-year custodial term, eighty-five percent to be served
without parole as required by the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2. The court also imposed a term of five years
parole supervision upon defendant's release from prison as
required by NERA. For the aggravated assault offense, the judge
sentenced defendant to a concurrent six-year term subject to NERA.
When defendant was released from prison he was informed of
the conditions of his mandatory five-year period of parole
supervision. Among other conditions, defendant was to refrain
from possessing a firearm. In addition, he was "to have no contact
with any person known by [him] to be a member of the Bloods,
without the knowledge and approval of [his] Parole Officer. [He
was required] to report any incidental contact with any member of
the aforementioned gang(s) to [his] Parole Officer within [twenty-
four] hours."
Nine months after defendant began his five-year term of
mandatory parole supervision, a police officer stopped a vehicle
occupied by defendant and three others, two of whom were known
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Bloods. While speaking with defendant at the back car window, the
officer noticed the smell of burnt marijuana. During an ensuing
search, officers found in the vehicle's trunk a bag containing a
revolver, a "neck gaiter" - a garment used to cover the lower
half of the face – eight hollow-point rounds of .38 special
ammunition, and two rounds of .38 special full metal jacket
ammunition. Officers found beneath the front passenger seat a 9mm
SCCY handgun loaded with five rounds of ammunition. Defendant had
been sitting directly behind the front passenger seat.
The vehicle's occupants were also searched. Defendant had
"numerous bundles of cash in several of his pants pockets."
Another occupant had a waist pack that contained numerous bundles
of cash of different amounts and denominations. The waist pack
also contained a smart cellular phone and a flip cellular phone.
The police arrested the vehicle's occupants. Following
defendant's arrest, the Board issued an arrest warrant and
initiated parole revocation proceedings. A senior parole officer
and the municipal police officer who executed the motor vehicle
stop testified at the violation hearing. Defendant also testified.
The parole officer recounted defendant's criminal history,
provided an overview of the charges and violations, and testified
defendant's parole should be revoked due to his serious violations
of parole conditions and the risk he presented to the community.
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The municipal police officer recounted the circumstances of the
motor vehicle stop, the search, and defendant's arrest. During
cross-examination by defendant's attorney, the officer said he was
unaware of statements allegedly made by the vehicle's driver that
the driver was accepting ownership of the firearms the police
found during their search of the vehicle and its trunk.
Defendant testified and admitted entering the automobile. He
claimed his presence would have been for a short period of time
and his purpose was to get a ride to his mother's residence. He
said he was unaware of the handgun beneath the front seat. He
first became aware of the gun when police recovered it during
their search. He also testified he attempted to contact his parole
officer the following day to explain the situation.
Defendant's counsel argued the charged violations –
possessing a firearm and having contact with members of the Bloods
— had not been sustained. Although acknowledging defendant had
entered the vehicle with neighborhood associates, counsel asserted
defendant had done so solely for the purpose of transportation and
no "nefarious activity was afoot."
The hearing officer determined the charged violations had
been sustained by clear and convincing evidence. Acknowledging
defendant did not physically possess the gun beneath the front
passenger seat, the parole officer nonetheless found defendant
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constructively possessed the weapon, because the circumstantial
evidence "permit[ed] a reasonable inference [defendant] had
knowledge of its presence and had the capacity to exercise control
over it." The hearing officer also noted defendant did not dispute
being in the presence of the other Bloods members. The hearing
officer recommended revocation of defendant's parole supervision
and a thirteen-month FET.
Defendant filed exceptions to the hearing officer's
recommendation. A two-member Board Panel reviewed and affirmed
the hearing officer's decision. Defendant filed an administrative
appeal. Before the Board issued its decision, the weapons charges
pending against defendant as the result of his arrest during the
motor vehicle stop were dismissed. On May 18, 2016, the Board
issued its final agency decision. The Board upheld the
determination defendant had seriously violated the conditions of
his parole supervision, affirmed the panel's decision to revoke
defendant's parole, and upheld the thirteen-month FET. This appeal
followed.
On appeal, defendant argues:
POINT I
THE BOARD['S] DECISION TO REVOKE THE
PAROLEE['S] PAROLE FOR VIOLATING CONDITION #8
OF HIS MANDATORY PAROLE SUPERVISION, (TO
REFRAIN FROM OWING [SIC] OR POSSESSING A
FIREARM) WHICH STEMS FROM HIS ARREST ON JUNE
5 A-4695-15T3
25, 2015, VIOLATE[S] N.J.S.A. 30:4-123.60 (B)
AND THAT SINCE THE CHARGES FOR POSSESSION OF
THE WEAPONS HAVE BEEN DISMISSED AGAINST HIM
HIS VIOLATION OF PAROLE ON CONDITION #8 MUST
BE REINSTATED.
POINT II
THE APPELLANT['S] PAROLE FOR VIOLATING THE
CONDITION FOR (GRASP) MUST BE REINSTATED ON
THE GROUNDS THAT HE MET THE 24 HOUR NOTICE
REQUIREMENT OF THE (GRASP) CONTRACT WHEN HE
TEXTED HIS PAROLE COUNSEL TO INFORM HIM ABOUT
THE INCIDENTAL CONTRACT [SIC] WITH OTHER GANG
MEMBERS.
POINT III
SINCE THE ABOUT [SIC] ERROR PLACES AN
UNCONSTITUTIONAL RESTRAINT ON APPELLANT['S]
LIBERTY TO BE RETURN [SIC] BACK TO SOCIETY
THIS COURT MUST ACT WITH URGENCY TO PREVENT
FURTHER HARM TO HIS RIGHTS UNDER DUE PROCESS
OF LAW (not raised below).
We affirm, substantially for the reasons expressed by the
Board. The Board's final decision is supported by sufficient
credible evidence on the record as a whole, and defendant's
arguments to the contrary are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(D) & (E).
Affirmed.
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HAFIZ JOSEY VS. NEW JERSEY STATE PAROLE BOARDÂ (NEW JERSEY STATE PAROLE BOARD)
Combined Opinion