N.K. VS. NEW JERSEY STATE PAROLE BOARD (NEW JERSEY STATE PAROLE BOARD) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-4953-16T2
N.K.,
Appellant,
v.
NEW JERSEY STATE PAROLE
BOARD,
Respondent.
___________________________
Submitted August 21, 2018 – Decided September 7, 2018
Before Judges Sumners and Gilson.
On appeal from the New Jersey State Parole
Board.
Eckert Seamans Cherin & Mellott, LLC,
attorneys for appellant (Edgar Alden Dunham,
IV, of counsel and on the brief).
Gurbir S. Grewal, Attorney General, attorney
for respondent (Melissa Dutton Schaffer,
Assistant Attorney General, of counsel;
Christopher C. Josephson, Deputy Attorney
General, on the brief).
PER CURIAM
N.K. appeals from a May 31, 2017 final determination of the
New Jersey State Parole Board (Board) that he seriously and
persistently violated the conditions of his parole. Accordingly,
the Board revoked his parole and ordered him to serve twelve months
of incarceration. We affirm.
I.
In 2010, N.K. pled guilty to second-degree sexual assault,
N.J.S.A. 2C:14-2(c)(4), and third-degree endangering the welfare
of a child, N.J.S.A. 2C:24-4(a). He admitted that when he was
twenty-three years old, he engaged in sexual conduct with two
victims under the age of sixteen. He was evaluated and found to
have the traits of repetitive and compulsive sexual behavior within
the meaning of the Sex Offender Act, N.J.S.A. 2C:47-1 to -10. In
2011, N.K. was sentenced to five years in prison to be served at
the Adult Diagnostic and Treatment Center. He also was sentenced
to parole supervision for life (PSL) upon his release and to
registration and restrictions under Megan's Law.
N.K. was released from custody in 2014, and he began to serve
PSL. At the time of his release, N.K. agreed to abide by various
parole conditions that required him, among other things, to (1)
successfully complete appropriate community or residential
counseling or treatment programs as directed; (2) refrain from
using, creating, or accessing a social networking profile or
service unless authorized; (3) abstain from alcohol; and (4)
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complete appropriate mental health counseling programs as
directed.
In May 2014, N.K. enrolled in a mental health program. In
February 2015, he admitted that he was found to be in possession
of two bottles of alcohol while at the program. Thereafter, he
was discharged from the mental health program for making
terroristic threats against the program.
In May 2015, N.K. was referred to a second recovery program
for substance abuse treatment and mental health counseling. He
was discharged from that program in November 2015, for failing to
complete an eight-week anger management course.
On August 7, 2016, N.K. signed a written notice of additional
special conditions of his PSL, including a requirement that he
notify his parole officer prior to the purchase, possession, or
use of a computer or other device with internet capability. Less
than two weeks later, a counselor at a community center where N.K.
was receiving mental health treatment contacted N.K.'s parole
officer, the parole officer of record (POR). The counselor
informed the POR that he saw N.K. using a computer to access
Facebook. The POR investigated that information, and N.K. admitted
that he had a Facebook account under an alias that was active
since at least 2010. N.K. also admitted that he had paid other
people, including his sister, to access his Facebook account and
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update him on the account's activity. N.K. also told the POR that
he had accessed YouTube, which is a website that allows users to
watch, upload, and share various types of videos.
On August 18, 2016, N.K. was served with written notification
of five violations of the conditions of his parole. Specifically,
he was charged with failing to (1) participate in and successfully
complete an appropriate community or residential counseling or
treatment program as directed; (2) refrain from using any computer
or device to create a social networking profile or to access any
social networking service or chat room; (3) notify his parole
officer prior to purchasing, possessing, or using any computer or
device that permits access to the internet; (4) refrain from the
purchase, possession, or use of alcohol; and (5) enroll in and
participate in a mental health counseling program as directed.
N.K. also was advised of his rights concerning those charges,
including his right to representation by legal counsel and his
right to a hearing. Thereafter, legal counsel was assigned, and
N.K. and his legal counsel participated in a hearing before a
Board hearing officer.
At the hearing, N.K. and his counsel were informed that N.K.'s
POR was not available that day and, instead, another parole officer
would present the charges against N.K. N.K.'s counsel objected,
but when given the option to adjourn the hearing until the POR was
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available, N.K.'s counsel declined to postpone the hearing. The
stand-in parole officer then presented the evidence against N.K.,
which consisted of the POR's written PSL violations summary (POR's
written summary), the written admissions by N.K., and the written
discharges from the two treatment programs. The POR's written
summary documented N.K.'s possession of alcohol, his discharge
from the two programs, the information received from the counselor
who had seen N.K. access Facebook and N.K.'s admissions, including
his admission to viewing YouTube.
On cross-examination, the stand-in parole officer
acknowledged that he had no personal knowledge of the case and
that his testimony was based on the POR's written summary and
other documents. N.K. testified that he never knowingly violated
the terms or conditions of his PSL. His counsel then argued that
the Board had failed to present clear and convincing evidence of
any violation of N.K.'s conditions of parole.
After considering the information submitted by the parole
officer and the testimony and arguments on behalf of N.K., the
hearing officer found clear and convincing evidence of each of the
five charged parole violations. With respect to the use of an
internet-capable device, the hearing officer relied on N.K.'s
written admission that he had a Facebook account, the information
from the counselor who had seen N.K. access Facebook, and N.K.'s
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verbal admission that he had viewed YouTube. Concerning the
treatment programs, the hearing officer relied on the written
discharges from those programs. Finally, with regard to the
possession of alcohol, the hearing officer relied on N.K.'s written
admission. The hearing officer then recommended that N.K.'s parole
be revoked and that he be incarcerated for twelve months.
A two-member panel of the Board reviewed and adopted the
hearing officer's findings and recommendations. N.K.
administratively appealed to the full Board. After reviewing the
matter on May 31, 2017, the full Board agreed with the panel and
found that there was clear and convincing evidence of each of the
five parole condition violations. The full Board also concurred
with the recommendation that N.K.'s parole be revoked and that he
be incarcerated for twelve months.
II.
On this appeal, N.K. makes four arguments. He contends that
the Board (1) acted arbitrarily and capriciously; (2) erred by
relying on hearsay evidence that violated his due process rights
and the Residuum rule; and (3) erred in finding clear and
convincing evidence of serious and persistent violations of N.K.'s
parole conditions. N.K. also argues that his appeal is not moot
even though he has completed his twelve months of incarceration.
Having reviewed the record and law, we are not persuaded by any
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of these arguments, and we discern no basis to disturb the final
agency decision of the Board.
We begin by addressing the mootness issue. Notably, the
Board does not contend that the issues presented by N.K. are moot.
N.K. has completed the twelve months of incarceration, accordingly
that part of his appeal is moot. See State v. F.W., 443 N.J.
Super. 476, 479 (App. Div. 2016). We conclude, however, that
because N.K. is subject to continued parole supervision, the issues
raised on appeal are "important matter[s] of public interest and
capable of repetition warranting our review." In re J.S., 444
N.J. Super. 303, 313-14 (App. Div. 2016); see also State v.
Gartland, 149 N.J. 456, 464 (1997) ("Our courts will entertain a
case that has become moot when the issue is of significant public
importance and is likely to recur."); Jamgochian v. N.J. State
Parole Bd., 394 N.J. Super. 517, 529 (App. Div. 2007) (considering
challenges to conditions of the defendant's parole on the merits,
even though the conditions were dismissed prior to the appeal,
because the arguments raised "issues of substantial importance
that are likely to recur but evade review"), aff’d as modified,
196 N.J. 222 (2008).
Next, we set forth the due process requirements when parole
is revoked and our standard of review. Our Supreme Court has
adopted the minimum due process requirements identified by the
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United States Supreme Court that a parolee must receive before his
or her parole is revoked. That process includes:
(a) written notice of the claimed violations
of parole; (b) disclosure to the parolee of
evidence against him; (c) opportunity to be
heard in person and to present witnesses and
documentary evidence; (d) the right to
confront and cross-examine adverse witnesses
(unless the hearing officer specifically
finds good cause for not allowing
confrontation); (e) a "neutral and detached"
hearing body such as a traditional parole
board, members of which need not be judicial
officers or lawyers; and (f) a written
statement by the factfinders as to the
evidence relied on and reasons for revoking
parole.
[Jamgochian v. State Parole Board, 196 N.J.
222, 243-44 (2008) (quoting Morrissey v.
Brewer, 408 U.S. 471, 489) (1972)).]
Our review of the Board's determination is limited. We will
defer to the decision of an administrative agency unless it "is
arbitrary, capricious or unreasonable." In re State & Sch. Emps.'
Health Benefits Comm'ns' Implementation of Yucht, 233 N.J. 267,
279-80 (2018). In that regard, we consider whether there is
substantial credible evidence in the record to support the agency's
determination. Id. at 280. "[I]f substantial evidence supports
the agency's decision, 'a court may not substitute its own judgment
for the agency's even though the court might have reached a
different result[.]" In re Carter, 191 N.J. 474, 483 (quoting
Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)).
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When the Board revokes parole, its decision must be supported
by clear and convincing evidence. N.J.A.C. 10A:71-7.12(c)(1).
Clear and convincing evidence is evidence
upon which the trier of fact can rest "a firm
belief or conviction as to the truth of the
allegations sought to be established." . . .
It must be "so clear, direct and weighty and
convincing as to enable either a judge or jury
to come to a clear conviction, without
hesitancy, of the truth of the precise facts
in issue."
[In re Registrant R.F., 317 N.J. Super. 379,
384 (App. Div. 1998) (internal citations
omitted).]
The relaxed rules of evidence governing an administrative
hearing also apply to a parole revocation hearing. Jamgochian,
196 N.J. at 250; see also N.J.S.A. 52:14B-10 (providing that
"parties shall not be bound by rules of evidence" and "[a]ll
relevant evidence is admissible"). Accordingly, "hearsay evidence
will be admissible, subject to the sound discretion of the Parole
Board." Jamgochian, 196 N.J. at 250 (citing N.J.A.C. 1:1-15.5).
All of N.K.'s arguments on appeal depend on whether there was
substantial credible evidence in the record for the Board to
establish, by clear and convincing evidence, that he seriously and
persistently violated the conditions of his PSL. As already noted,
the Board found that N.K. violated five different conditions of
his parole.
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N.K.'s primary argument is that all of the evidence was
presented through the hearsay testimony of the stand-in parole
officer. Relying on a parole officer who does not have direct
knowledge of the violations is not the best practice. In this
case, however, N.K. declined the hearing officer's offer to
postpone the hearing until the POR was available.
Just as significantly, some of the key evidence against N.K.
was his own undisputed admissions. In writing, N.K. admitted to
possessing alcohol and having a Facebook account. He also made a
verbal admission, which he did not dispute at the hearing, that
he used YouTube. Thus, the hearsay information that came from the
POR's written summary was corroborated and supported by N.K.'s own
admissions. Viewing this administrative record in light of our
standard of review, there was clear and convincing evidence that
N.K. used a computer or device to access a social networking
service and failed to notify his POR that he was using a computer
or device to access the internet.
With regard to the treatment programs, the record contained
written discharge summaries from both programs, neither of which
N.K. disputed at the hearing. Thus, the hearsay testimony from
the POR's written summary was corroborated and supported by the
written discharges from the treatment programs. Consequently,
there was also clear and convincing evidence that N.K. failed to
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successfully complete a counseling and treatment program and to
participate in his mental health counseling program.
Finally, the record contains a written admission by N.K. that
he possessed two bottles of alcohol during his parole. Again, we
discern no abuse of discretion in the Board's determination that
the admission constituted clear and convincing evidence that N.K.
violated the conditions of his PSL.
The record before us demonstrates that N.K. was
well-represented by assigned counsel. Assigned counsel presented
thoughtful arguments at each stage of the proceedings before the
Board. In the briefs submitted to us, counsel has done a good job
in making the best arguments possible on behalf of N.K.
Nevertheless, having reviewed the full record, we find no basis
to disturb the determinations made by the Board.
Affirmed.
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