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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2792-04T32792-04T3 ANTHONY GROSS, Petitioner-Appellant, v. NEW JERSEY STATE PAROLE BOARD, Respondent-Respondent. __________________________________

Submitted: September 27, 2005 - Decided: Before Judges Axelrad and Payne. On appeal from the New Jersey State Parole Board. Anthony Gross, appellant pro se. Peter C. Harvey, Attorney General, attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Walter C. Kowalski, Deputy Attorney General, on the brief). PER CURIAM Appellant inmate Anthony Gross appeals from an increase in his parole ineligibility date (PED) resulting from disciplinary charges occurring in l986. He asserts due process violations, claiming he was not informed a parole panel was considering increasing his PED and he was not timely notified of the increase in his PED as required by N.J.A.C. 10A:71-3.4. Gross contends he only became aware of the increase in 2004, just prior to his appeal. On October 6, 2004 the New Jersey State Parole Board (Board) denied Gross' appeal as untimely. We affirm. In l983 Gross was sentenced to a seventy-two year prison term, with a mandatory minimum of thirty-six years, for

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two counts of murder, one count of aggravated assault and various weapons possession charges. On February 8, 1986 Gross was found guilty of committing three asterisk offenses, *.002, assault; *.005, threatening another with bodily harm; and *.803, attempted assault. On May 24, 1986 he was found guilty of committing offense *.002, assault. In addition to disciplinary sanctions, these charges were referred to the Board. Records produced by the Board in response to Gross' appeal disclosed notices of the Board's review of these disciplinary infractions and PED determinations. More specifically, we were provided copies of the notices of infraction reviews from the Board addressed to Gross, Inmate #69337, dated March 31, 1986 and June 16, 1986, identifying the infractions that had been referred to the Board, and informing him that his case and institutional records would be reviewed by a Board panel and, pursuant to N.J.A.C. 30:4-123.52, his PED might be increased. The notice further instructed: Prior to a decision being made, which will not occur until fourteen (l4) days from the date of this notice, you may submit for consideration by the Board Panel or designated hearing officer a written statement outlining any mitigating factors. Please submit your written statement with a copy of this notice to the State Parole Board's staff at the institution within fourteen (l4) days from the date of this notice. You will be notified in writing of the decision made by the Board panel or designated hearing officer in your case. The notices were signed by "Jack Volz" on behalf of the Board. We were also provided copies of the determination notices addressed to Gross, Inmate #69337, dated April l7, 1986, which increased his PED by twenty months, and July 11, 1986, increasing his PED by three months, based on the respective infractions. Both notices contained a carbon copy notation to "Inmate." The notices were signed by "John Westin" on behalf of the Board. In his appeal Gross claims he did not become aware until April 2004 that his parole ineligibility date was increased as a result of the l986 infractions. He asserts that the Board failed to timely notify him of its decisions to increase his PED, mandating nullification of the Board's actions and the reinstatement of his original parole eligibility date. In his June 9, 2004 appeal to the Board, however, Gross states he "only became aware, on May 29, 2004" that his PED was increased when he "received a New Jersey State Board Parole Eligibility Calculation dated March 11, 2004." Critical to this appeal, Gross' reply brief does not address the notices produced by the Board. The brief responds only to the Board's alternate argument of lack of prejudice. We presume Gross received the Board's notices in l986, particularly in view of his failure to deny receipt after being confronted with evidence of the specific notices contained in the Board's file. As the Board provided notice of the increase in Gross' PED pursuant to N.J.A.C. 10A:713.4, his due process rights were not violated and his appeal eight years later was untimely.

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Affirmed.

(continued) (continued) 4 A-2792-04T3 October 13, 2005 0x01 graphic

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