RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4135-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GIROLAMO BRUSCIANELLI,
Defendant-Appellant. ______________________________
Submitted October 1, 2018 – Decided October 9, 2018
Before Judges Sabatino and Haas.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-10-0909.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).
Michael A. Monahan, Acting Union County Prosecutor, attorney for respondent (James C. Brady, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Girolamo Bruscianelli appeals from the April 4, 2017 Law
Division order denying his petition for post-conviction relief (PCR) following
an evidentiary hearing. We affirm.
Pursuant to a plea agreement negotiated between the parties, defendant
pled guilty to second-degree sexual assault, N.J.S.A. 2C:14-2(c)(4). In doing
so, he admitted having sexual intercourse with a minor during the one-year
period between June 2008 and June 2009. At that time, the victim was less than
sixteen years old, and defendant was more than four years older than her.
During the plea hearing, defendant stated that he had reviewed the plea
form, which specifically apprised him that he would be subject to parole
supervision for life (PSL). Defendant also signed a separate form
acknowledging that he would be required to abide by the twenty-five general
conditions of PSL listed on the form. The plea form informed defendant that if
he violated a condition of PSL, the State Parole Board could revoke his parole
and return him "to prison for [twelve] to [eighteen] months for each
revocation[.]"
Judge Scott Moynihan, who presided at the plea hearing, also questioned
defendant about his understanding of PSL, and all of the other terms of the
A-4135-16T2 2 agreement. Defendant testified that: (1) he was "[d]efinitely" satisfied with the
services provided by his attorney; (2) he understood all aspects of the plea; and
(3) no one forced or threatened him to plead guilty.
In accordance with the parties' agreement, Judge Moynihan subsequently
sentenced defendant to a four-year prison term, and PSL. The judge also ordered
defendant to comply with all applicable Megan's Law reporting requirements.
Defendant did not file a direct appeal from his conviction and sentence.
Following his release from prison in June 2013, defendant violated the
conditions of his PSL on at least three occasions and, pursuant to N.J.S.A.
2C:43-6.4(d), the State Parole Board returned him to prison for periods of time
ranging between twelve and sixteen months for these violations. Defendant did
not file a direct appeal from any of the Board's determinations.
In February 2016, defendant filed his petition for PCR. In support of his
petition, defendant alleged that his trial attorney provided ineffective assistance
to him because she failed to adequately explain the consequences of PSL or
properly investigate his case. He also asserted that his attorney, with the
assistance of the prosecutor, coerced him into pleading guilty. Judge Moynihan
conducted an evidentiary hearing, at which defendant and his trial attorney
A-4135-16T2 3 testified. At the conclusion of the hearing, the judge rendered a thorough written
opinion, denying defendant's petition for PCR.
The judge rejected defendant's assertion that his attorney did not advise
him of the ramifications of PSL because the record developed at the plea hearing
was replete with admissions by defendant that he fully understood the terms of
the agreement, including the PSL component. The judge noted that defendant
claimed he was "probably in robotic mode saying yes to everything" during the
plea hearing. The judge found this testimony "to be a lie" because "the transcript
of each proceeding involving [defendant] reveals that he was never reticent,
addressing the court freely and openly. He was never "robotic." Moreover,
defendant conceded that he initialed each page of the plea forms, including the
PSL forms, and he acknowledged their content.
Judge Moynihan next rejected defendant's bald assertion that the attorney
"did not adequately investigate any aspect of the case and merely guided
defendant to a plea without any investigation whatsoever." After noting that
defendant could not "point to any fact that a proper investigation would have
revealed[,]" the judge credited the attorney's testimony that she met with
defendant on many occasions, thoroughly discussed the case with him, answered
his questions, and reviewed all of the discovery.
A-4135-16T2 4 The judge also found that defendant's claim of coercion in regard to the
plea was not credible. Defendant argued that he "got scared" when a prosecutor
allegedly told him in open court "with people around" that he would lose at trial.
However, defendant could not point to anything in the transcript of that
proceeding to support his contention. Moreover, the judge observed that
defendant "admitted during the plea colloquy that he was not coerced to take the
plea."
Based upon these findings, Judge Moynihan concluded that defendant
failed to satisfy the two-prong test of Strickland v. Washington, 466 U.S. 668,
687 (1984), which requires a showing that trial counsel's performance was
deficient and that, but for the deficient performance, the result would have been
different. In summing up his ruling on defendant's ineffective assistance of
counsel claim, the judge stated:
[Defendant's] present contentions are false. Viewing the testimony of trial counsel and [defendant], there is no doubt whatsoever that trial counsel was truthful. She testified forthrightly. Her file notes buttressed her testimony that, with [defendant], she reviewed the case, his exposure if the case proceeded, and the parameters of the plea. [Defendant's] testimony, on the other hand, was of the weaselly type seen when a [defendant], with nothing to lose by lying, makes up a story that contradicts all his prior statements regarding a plea. There was no ring of truth at all to his contentions. The court, having had the opportunity to
A-4135-16T2 5 evaluate the credibility of both witnesses, firmly believes the testimony of trial counsel and finds [defendant] was lying.
Defendant also argued that "the imposition of PSL was unconstitutional
as applied to him because the PSL statute [N.J.S.A. 2C:43-6.4] violates the
separation of powers doctrine." Judge Moynihan found that defendant's claim
on this issue was barred by Rule 3:22-4(a) because it could have been raised,
but was not, on direct appeal. The judge further ruled that even if the claim was
not barred, it plainly lacked merit because the Legislature had specifically
Free access — add to your briefcase to read the full text and ask questions with AI
RECORD IMPOUNDED
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-4135-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GIROLAMO BRUSCIANELLI,
Defendant-Appellant. ______________________________
Submitted October 1, 2018 – Decided October 9, 2018
Before Judges Sabatino and Haas.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-10-0909.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).
Michael A. Monahan, Acting Union County Prosecutor, attorney for respondent (James C. Brady, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Girolamo Bruscianelli appeals from the April 4, 2017 Law
Division order denying his petition for post-conviction relief (PCR) following
an evidentiary hearing. We affirm.
Pursuant to a plea agreement negotiated between the parties, defendant
pled guilty to second-degree sexual assault, N.J.S.A. 2C:14-2(c)(4). In doing
so, he admitted having sexual intercourse with a minor during the one-year
period between June 2008 and June 2009. At that time, the victim was less than
sixteen years old, and defendant was more than four years older than her.
During the plea hearing, defendant stated that he had reviewed the plea
form, which specifically apprised him that he would be subject to parole
supervision for life (PSL). Defendant also signed a separate form
acknowledging that he would be required to abide by the twenty-five general
conditions of PSL listed on the form. The plea form informed defendant that if
he violated a condition of PSL, the State Parole Board could revoke his parole
and return him "to prison for [twelve] to [eighteen] months for each
revocation[.]"
Judge Scott Moynihan, who presided at the plea hearing, also questioned
defendant about his understanding of PSL, and all of the other terms of the
A-4135-16T2 2 agreement. Defendant testified that: (1) he was "[d]efinitely" satisfied with the
services provided by his attorney; (2) he understood all aspects of the plea; and
(3) no one forced or threatened him to plead guilty.
In accordance with the parties' agreement, Judge Moynihan subsequently
sentenced defendant to a four-year prison term, and PSL. The judge also ordered
defendant to comply with all applicable Megan's Law reporting requirements.
Defendant did not file a direct appeal from his conviction and sentence.
Following his release from prison in June 2013, defendant violated the
conditions of his PSL on at least three occasions and, pursuant to N.J.S.A.
2C:43-6.4(d), the State Parole Board returned him to prison for periods of time
ranging between twelve and sixteen months for these violations. Defendant did
not file a direct appeal from any of the Board's determinations.
In February 2016, defendant filed his petition for PCR. In support of his
petition, defendant alleged that his trial attorney provided ineffective assistance
to him because she failed to adequately explain the consequences of PSL or
properly investigate his case. He also asserted that his attorney, with the
assistance of the prosecutor, coerced him into pleading guilty. Judge Moynihan
conducted an evidentiary hearing, at which defendant and his trial attorney
A-4135-16T2 3 testified. At the conclusion of the hearing, the judge rendered a thorough written
opinion, denying defendant's petition for PCR.
The judge rejected defendant's assertion that his attorney did not advise
him of the ramifications of PSL because the record developed at the plea hearing
was replete with admissions by defendant that he fully understood the terms of
the agreement, including the PSL component. The judge noted that defendant
claimed he was "probably in robotic mode saying yes to everything" during the
plea hearing. The judge found this testimony "to be a lie" because "the transcript
of each proceeding involving [defendant] reveals that he was never reticent,
addressing the court freely and openly. He was never "robotic." Moreover,
defendant conceded that he initialed each page of the plea forms, including the
PSL forms, and he acknowledged their content.
Judge Moynihan next rejected defendant's bald assertion that the attorney
"did not adequately investigate any aspect of the case and merely guided
defendant to a plea without any investigation whatsoever." After noting that
defendant could not "point to any fact that a proper investigation would have
revealed[,]" the judge credited the attorney's testimony that she met with
defendant on many occasions, thoroughly discussed the case with him, answered
his questions, and reviewed all of the discovery.
A-4135-16T2 4 The judge also found that defendant's claim of coercion in regard to the
plea was not credible. Defendant argued that he "got scared" when a prosecutor
allegedly told him in open court "with people around" that he would lose at trial.
However, defendant could not point to anything in the transcript of that
proceeding to support his contention. Moreover, the judge observed that
defendant "admitted during the plea colloquy that he was not coerced to take the
plea."
Based upon these findings, Judge Moynihan concluded that defendant
failed to satisfy the two-prong test of Strickland v. Washington, 466 U.S. 668,
687 (1984), which requires a showing that trial counsel's performance was
deficient and that, but for the deficient performance, the result would have been
different. In summing up his ruling on defendant's ineffective assistance of
counsel claim, the judge stated:
[Defendant's] present contentions are false. Viewing the testimony of trial counsel and [defendant], there is no doubt whatsoever that trial counsel was truthful. She testified forthrightly. Her file notes buttressed her testimony that, with [defendant], she reviewed the case, his exposure if the case proceeded, and the parameters of the plea. [Defendant's] testimony, on the other hand, was of the weaselly type seen when a [defendant], with nothing to lose by lying, makes up a story that contradicts all his prior statements regarding a plea. There was no ring of truth at all to his contentions. The court, having had the opportunity to
A-4135-16T2 5 evaluate the credibility of both witnesses, firmly believes the testimony of trial counsel and finds [defendant] was lying.
Defendant also argued that "the imposition of PSL was unconstitutional
as applied to him because the PSL statute [N.J.S.A. 2C:43-6.4] violates the
separation of powers doctrine." Judge Moynihan found that defendant's claim
on this issue was barred by Rule 3:22-4(a) because it could have been raised,
but was not, on direct appeal. The judge further ruled that even if the claim was
not barred, it plainly lacked merit because the Legislature had specifically
granted the Parole Board the authority to set the conditions of a defendant's PSL
and to impose appropriate sanctions for violations of those conditions . This
appeal followed.
On appeal, defendant's appellate attorney 1 raises the following contentions
on defendant's behalf:
Point One – DEFENDANT HAS ESTABLISHED HIS RIGHT TO [PCR].
A. The Constitutionality Issue.
1 Defendant has filed a pro se supplemental brief which, in large part, repeats the same contentions raised by his appellate counsel. Contrary to Rule 2:6- 2(a)(6), however, defendant had not divided his legal argument into discernible point headings and, therefore, it is not possible to list each of his specific contentions in this opinion. Nevertheless, we have reviewed defendant's entire brief and conclude that his arguments are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2). A-4135-16T2 6 B. Deficiencies of Plea Counsel.
We begin by addressing defendant's argument that his trial attorney
provided him with ineffective assistance in connection with his guilty plea.
When petitioning for PCR on this basis, the defendant must establish, by a
preponderance of the credible evidence, that he or she is entitled to the requested
relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451,
459 (1992). To sustain that burden, the defendant must allege and articulate
specific facts that "provide the court with an adequate basis on which to rest its
decision." State v. Mitchell, 126 N.J. 565, 579 (1992).
There is a strong presumption that counsel "rendered adequate assistance
and made all significant decisions in the exercise of reasonable professional
judgment." Strickland, 466 U.S. at 690. Further, because prejudice is not
presumed, State v. Fritz, 105 N.J. 42, 52 (1987), the defendant must demonstrate
"how specific errors of counsel undermined the reliability" of the proceeding.
U.S. v. Cronic, 466 U.S. 648, 659 n.26 (1984). When as here, the trial judge
conducts an evidentiary hearing, we also defer to the judge's "credibility
findings that are often influenced by matters such as observations of the
character and demeanor of witnesses and common human experience that are
not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999).
A-4135-16T2 7 Having considered defendant's ineffective assistance contentions in light
of the record and applicable law, we affirm the denial of defendant's PCR
petition substantially for the reasons detailed at length in Judge Moynihan's
comprehensive written opinion. As the judge explained, defendant's testimony
at the PCR hearing was simply not believable because, among other reasons,
defendant contradicted his admissions during the plea colloquy that he was
satisfied with his attorney's services; fully understood the plea terms, including
the PSL forms he signed; and was not coerced in any way. We are unable to
discern any basis to question or disturb the judge's well-founded credibility
determinations. Ibid. Therefore, the judge properly rejected defendant's
ineffective assistance of counsel claim.
We also agree with Judge Moynihan that defendant's challenge to the
constitutionality of PSL was barred by Rule 3:22-4(a). It is well established that
a PCR petition "is not . . . a substitute for appeal . . . ." R. 3:22-3; see, e.g., State
v. Hess, 207 N.J. 123, 145 (2011). Therefore, a defendant "is generally barred
from presenting a claim on PCR that could have been raised at trial or on direct
appeal, R. 3:22-4(a)[.]" Nash, 212 N.J. at 546. Under Rule 3:22-4(a),
[a]ny ground for relief not raised in the proceedings resulting in the conviction, or in a [PCR] proceeding brought and decided prior to the adoption of this rule, or in any appeal taken in any such proceedings is barred
A-4135-16T2 8 from assertion in a [PCR] proceeding . . . unless the court on motion or at the hearing finds:
(1) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or
(2) that enforcement of the bar to preclude claims, including one for ineffective assistance of counsel, would result in fundamental injustice; or
(3) that denial of relief would be contrary to a new rule of constitutional law under either the Constitution of the United States or the State of New Jersey.
Here, defendant did not file a direct appeal challenging the
constitutionality of his sentence to PSL, the conditions imposed, or the Parole
Board's subsequent determinations that he violated those conditions and should
be returned to prison. Defendant's contention that he could not have earlier
challenged his original sentence to PSL or the Parole Board's later rulings
concerning his violations of PSL is baseless.
Once defendant was sentenced, he was subject to PSL. Indeed, he signed
the PSL general conditions form at the time he pled guilty to the offense that
required Judge Moynihan to sentence him to PSL. Clearly, defendant had the
opportunity to file a direct appeal from either his sentence or the Parole Board's
determinations, and he never took advantage of it. Therefore, Judge Moynihan
A-4135-16T2 9 correctly concluded that the exception provided in Rule 3:22-4(a)(1) did not
apply.
Likewise, no "fundamental injustice" resulted from the judge's
determination because defendant had the chance to raise this constitutional
challenge, but inexplicably failed to do so. R. 3:22-4(a)(2). In addition, there
was no "new rule of constitutional law" that permitted the judge to ignore the
bar prohibiting him from considering an issue defendant could have raised on
direct appeal. R. 3:22-4(a)(3).
Nevertheless, we agree with Judge Moynihan's further determination that
even if defendant's assertion that N.J.S.A. 2C:43-6.4 is unconstitutional under a
separation of powers theory could have been considered in the PCR proceeding,
the argument plainly lacked merit. By way of background, individuals
sentenced to PSL remain in the custody of the Commissioner of Corrections
following their release from prison, and are supervised by the Parole Board.
State v. Hester, 233 N.J. 381, 387-88 (2018) (citing N.J.S.A. 2C:4-6.4).2 PSL is
"deemed to be a term of life imprisonment[,]" N.J.S.A. 2C:43-6.4(b), and is
intended to be a penal, not remedial, post-sentence supervisory program, State
2 In 2003, the Legislature amended N.J.S.A. 2C:43-6.4, removed references in the statute to community supervision for life (CSL), and substituted PSL for CSL. L. 2003, c. 267, § 1 (eff. Jan. 14, 2004). Hester, 233 N.J. at 387. A-4135-16T2 10 v. Perez, 220 N.J. 423, 441 (2015), which is a provision of the original criminal
sentence. State v. Schubert, 212 N.J. 295, 314 (2012).
Pertinent to the Parole Board's authority to conduct revocation hearings,
N.J.S.A. 2C:43-6.4(b) states:
If the defendant violates a condition of a special sentence of [PSL], the defendant shall be subject to the provisions [in N.J.S.A. 30:4-123.60 to -123.63 and N.J.S.A. 30:4-123.65], and for the purpose of calculating the limitation on time served [set forth in N.J.S.A. 30:4-123.65] . . . Nothing contained in this subsection shall prevent . . . the [Parole Board] from proceeding under the provisions of [N.J.S.A. 30:4- 123.60 to -123.63 and N.J.S.A. 30:4-123.65] against any such defendant for a violation of any conditions of the special sentence of [PSL], including the conditions imposed by the court pursuant to N.J.S.[A.] 2C:45-1. In any such proceeding by the [Parole Board], the provisions of [N.J.S.A. 30:4-123.51b] authorizing revocation and return to prison shall be applicable to such a defendant, notwithstanding that the defendant may not have been sentenced to or served any portion of a custodial term for conviction of an offense enumeration in subsection a. of this section.
Therefore, N.J.S.A. 2C:43-6.4(b) authorizes the Parole Board, in its
capacity of supervising an individual's compliance with the conditions of a
special sentence to PSL, to revoke PSL, and return a violator to prison. In this
regard, N.J.S.A. 30:4-123.51b(c) states, "[i]f the parolee violates a condition of
a special sentence of parole supervision for life, the parolee . . . may be returned
A-4135-16T2 11 to prison." Where "revocation and return to custody [is] desirable[,] . . . the
appropriate board panel shall revoke parole and return the parolee to prison for
a specified length of time between [twelve] and [eighteen] months[.]" Ibid.
A violation of the conditions of PSL may also be prosecuted as a third -
degree criminal offense pursuant to N.J.S.A. 2C:43-6.4(d). In that instance,
judicial adjudication is required. See Hester, 233 N.J. at 388; Perez, 220 N.J. at
441. However, where the defendant is not charged with committing a new
crime, N.J.S.A. 2C:43-6.4(d) specifically provides that the Parole Board can
adjudicate the PSL violation, revoke parole, and return the defendant to prison. 3
With this essential background in mind, we turn to defendant's contention
that N.J.S.A. 2C:43-6.4 "represents an unconstitutional incursion by the
executive on the prerogatives of the judicial branch." He asserts that the statute
violates the separation of powers clause because the Parole Board, as an
executive agency, should not have the authority to extend a criminal defendant's
period of incarceration by revoking parole and returning the defendant to prison
for a violation of a PSL condition. We disagree.
3 In this regard, N.J.S.A. 2C:43-6.4(d) states, "[n]othing in this subsection shall preclude subjecting a person who violates any condition of a special sentence of [PSL] to the provisions of [N.J.S.A. 30:4-123.60 to -123.63 and N.J.S.A. 30:4- 123.65] pursuant to the provisions of [N.J.S.A. 30:4-123.51b]." A-4135-16T2 12 The separation of powers clause of the New Jersey Constitution, N.J.
Const. art. III, §1, states:
The powers of the government shall be divided among three distinct branches, the legislative, executive, and judicial. No person or persons belonging to or constituting one branch shall exercise any of the powers properly belonging to either of the others, except as expressly provided in this Constitution.
In State v. Bond, 365 N.J. Super. 430 (App. Div. 2003), we explained:
The purpose of the separation of powers is to create a system of checks and balances among the three branches of government. State v. Leonardis, 73 N.J. 360, 370 (1977). It is not intended, however, to create an absolute division of powers among the three branches of government, thereby preventing cooperative action among them. Ibid. Only when the challenged statute impairs the integrity among the branches should the doctrine's effect on a branch's constitutional limits be recognized. Bullet Hole, Inc. v. Dunbar, N.J. Super. 562, 574 (App. Div. 2000). We have observed that "[t]he separation of powers prevents any one branch from aggregating unchecked power, which might lead to oppression and despotism." Ibid.
[Bond, 365 N.J. Super. at 441.]
In Bond, we rejected the premise that the Parole Board's promulgation of
CSL regulations, N.J.A.C. 10A:71-6.11,4 violated the separation of powers
4 The Parole Board's subsequently adopted regulations governing PSL. N.J.A.C. 10A:71-6.12. A-4135-16T2 13 doctrine. Id. at 443. We noted that the Legislature vested the Parole Board with
supervisory authority over persons subject to CSL, the predecessor to PSL, in
N.J.S.A. 2C:43-6.4(b). Id. at 440. We concluded:
[T]he Legislature's use of the language "shall be supervised as if on parole" can be reasonably viewed as enabling the executive branch to promulgate regulations to further this purpose. Moreover, we should take into consideration the executive's "specialized expertise" in these matters.
[Id. at 442 (citation omitted).]
We also analyzed the Legislature's role in authorizing agency action, and
observed:
"[I]t is settled beyond controversy that the Legislature may enact statutes setting forth in broad design its intended aims, leaving the detailed implementation of the policy thus expressed to an administrative agency." [Cammarata v. Essex Cnty. Park Comm'n, 26 N.J. 404, 410 (1958).] Here, the Legislature's intent to create a policy whereby CSL would mirror the conditions of parole is clear, and N.J.S.A. 2C:43-6.4(b) plainly comports with the principle expressed in Cammarata.
We do not determine in a factual vacuum whether a violation of the separation of powers doctrine has occurred, but instead must consider the accompanying "surroundings and objectives." The Legislature necessarily was fully aware of the Parole Board's supervisory scheme when it delegated authority to the Board to set forth the conditions of CSL. . . . In our view, a reasonable interpretation of the legislative purpose behind the statute is that the Legislature took
A-4135-16T2 14 notice of a pre-existing statutory scheme. . . . In short, N.J.S.A. 2C:43-6.4(b) does not constitute a violation of the separation of powers doctrine and [the] defendant's contentions to that effect are without merit.
[Bond, 365 N.J. Super. 442-443 (citations omitted).]
By analogy, the reasoning in Bond applies here. "[A] reasonable
interpretation of the legislative purpose behind the statute is that the Legislature
took notice of a pre-existing statutory scheme" in replacing CSL with PSL. Id.
at 443. The conditions imposed by N.J.S.A. 30:4-123.51b(c) accord with the
general parole conditions found in N.J.S.A. 30:4-123.59 and N.J.A.C. 10A:71-
6.4. Defendant's separation of powers challenge is therefore not sustainable.
Finally, we note that that even though several opportunities have existed,
the Legislature and New Jersey Supreme Court have not eliminated the ability
of the Parole Board to adjudicate PSL violations. In 2014, the Legislature
amended 2C:43-6.4(d) by raising a PSL violation from a fourth-degree to a third-
degree offense. L. 2013, c. 214, § 4 (eff. July 1, 2014). At that time, the
Legislature did not alter the administrative procedures promulgated pursuant to
the statutory scheme of PSL.
In 2015, our Supreme Court specifically acknowledged that
[a] violation of PSL may be prosecuted as a[n] offense, N.J.S.A. 2C:43-6.4(d), but it may also be treated as a parole violation, N.J.S.A. 2C:43-6.4(b). The State
A-4135-16T2 15 conceded at oral argument that the almost-universal practice since the enactment of the 2003 amendment is to revoke a defendant's parole and return him to prison.
[Perez, 220 N.J. at 441.]
Earlier this year, the Court also stated that "[u]nder PSL, the Parole Board has
the authority to simply revoke a defendant's supervised release for a violation of
a general condition and bypass the panoply of procedural rights afforded under
the criminal justice system, such as the rights to trial by jury and to have guilt
proven beyond a reasonable doubt." Hester, 233 N.J. at 396. Under these
circumstances, we conclude that N.J.S.A. 2C:43-6.4 plainly passes
constitutional muster.
Affirmed.
A-4135-16T2 16