SCHOWL HEDVAT VS. TENAFLY PLANNING BOARD AND Â BOROUGH OF TENAFLY (L-0993-12, BERGEN COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-1011-15T2
IFE JAMES,
Appellant,
v.
NEW JERSEY STATE PAROLE BOARD,
Respondent.
Submitted March 22, 2017 – Decided April 7, 2017
Before Judges Carroll and Gooden Brown.
On appeal from the New Jersey State Parole
Board.
Ife James, 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
Ife James appeals from a final decision of the New Jersey
State Parole Board (Board) revoking his release status on a
mandatory five-year term of parole supervision imposed pursuant
to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and setting
a twelve-month future eligibility term (FET). We affirm.
I.
In February 2008, James was convicted of robbery and weapons
offenses and sentenced to an aggregate eleven-year prison term
with an eighty-five percent parole ineligibility period pursuant
to NERA. On September 16, 2014, James completed his custodial
sentence and began serving his mandatory parole supervision term.
As conditions of his parole supervision, James was required, among
other things, to refrain from using controlled dangerous
substances and complete the Stages to Enhanced Parolee Success
(STEPS) treatment program.
On November 18, 2014, James tested positive for marijuana
use. On January 4, 2015, he was discharged from the STEPS program
at Kintock House for refusing to provide a urine sample. When
parole officers arrived at the program to apprehend him, he ran
from them and grabbed a fire extinguisher. Consequently, in
addition to the parole violation, he was arrested for aggravated
assault and resisting arrest.
Pertinent to this appeal, James was charged with violating
two conditions of his parole supervision. The first charge
specified that James violated general condition number 10, "to
refrain from the use, possession or distribution of a controlled
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dangerous substance, controlled dangerous substance analog, or
imitation controlled dangerous substance as defined in N.J.S.A.
2C:35-2 and N.J.S.A. 2C:35-11[,] [a]s evidenced by you testing
positive for [m]arijuana [on] 11/18/14. Positive lab results for
THC are attached." The second charge alleged that James
failed to complete the KINTOCK NEWARK STEPS
program, as evidenced by you being
unsuccessfully discharged on 01/04/2015,
after you refused to void a urine, and
subsequently resisted [] being arrested when
parole officers arrived in the facility. This
resulted in you being charged with resisting
arrest, eluding officer and aggravated assault
on police.
At his parole violation hearing, James admitted to using
marijuana. Accordingly, the hearing officer sustained the first
charge. James contested the second charge. He acknowledged he
did not provide the urine sample when requested to do so. However,
he testified "he didn't feel comfortable giving his urine" in the
presence of a homosexual staff member because "he was worried what
could happen to him" and "he didn't feel safe because of his
religion." The hearing officer rejected this defense, and found
the charge was established by clear and convincing evidence. The
hearing officer determined that the violations were of a serious
nature, and recommended that James's mandatory supervision be
revoked.
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On February 25, 2015, a two-member Board Panel adopted the
hearing officer's findings, revoked his mandatory supervision
status, and established a twelve-month FET. James filed an
administrative appeal, and on August 26, 2015, the full Board
affirmed the panel's decision. After reviewing the record in
detail, the Board agreed "that clear and convincing evidence exists
that [James] seriously violated the conditions of [his] mandatory
supervision status and revocation is desirable." The Board denied
James's request for reinstatement of mandatory supervision to a
community release program, finding he was "not a suitable candidate
for release and, as such, placement in a program is not
appropriate."
On appeal, James argues that: (1) the Board disregarded "the
unreasonableness and impact the order for him to expose himself
to a homosexual staff member had on his psyche, religious beliefs,
and reputation[;]" (2) he was not given a reasonable opportunity
to comply with the order to provide a urine sample as the two-hour
time frame to void had not elapsed; and (3) the Board failed to
give him credit for his post-parole accomplishments.
II.
We recently recounted in detail the statutory framework that
guides our review of parole revocation proceedings, as follows:
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"A person who has been sentenced to a
term of parole supervision and is on release
status in the community pursuant to" N.J.S.A.
2C:43-7.2 is "subject to the provisions and
conditions set by the appropriate [B]oard
panel." N.J.S.A. 30:4-123.51b(a). That
statute also gives the Board authority "to
revoke the person's release status and return
the person to custody for the remainder of the
term or until it is determined, in accordance
with regulations adopted by the [B]oard, that
the person is again eligible for release
. . . ." Ibid.
The Board must exercise its authority to
revoke release status "in accordance with the
procedures and standards" codified in N.J.S.A.
30:4-123.59 through N.J.S.A. 30:4-123.65.
N.J.S.A. 30:4-123.51b(a). The statutory
standards referenced permit revocation only on
proof by clear and convincing evidence that
the person "has seriously or persistently
violated the conditions," N.J.S.A. 30:4-
123.60(b) and N.J.S.A. 30:4-123.63(d), or that
the person has been "convicted of a crime"
while released, N.J.S.A. 30:4-123.60(c); see
also N.J.A.C. 10A:71-7.12(c)(1)-(2).
The Legislature did not further define
the type of conduct it intended to capture
within the statutory standard — "seriously or
persistently violated." And the Board has not
adopted a regulation to guide exercise of its
expertise to distinguish cases in which parole
should and should not be revoked.
The Legislature also codified procedures
for revocation that require the Board to
afford persons facing revocation of release
status significant procedural protections. In
addition to requiring proof by clear and
convincing evidence, the Legislature has
mandated notice of the alleged violation, a
probable cause hearing, and a subsequent
revocation hearing, at which the parolee has
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a right to confront his or her accusers,
testify, present evidence, subpoena witnesses
and have counsel appointed. N.J.S.A. 30:4-
123.62 to -123.63.
Revocation hearings are conducted by a
hearing officer, who must make a record and
provide reasons for his or her recommendation
to a two-member Panel of the Board in writing.
N.J.S.A. 30:4-123.63. The hearing officer's
written summary is given to the two-member
Panel and the parolee's attorney, who may file
exceptions with the Panel within seven days.
N.J.A.C. 10A:71-7.16. The Panel makes its
decision after reviewing the hearing officer's
summary, the exceptions and the record.
N.J.S.A. 30:4-123.63(d),(e); N.J.A.C.
10A:71-7.16 to -7.17B. If the Panel revokes
parole it must either establish a specific
release date or a future eligibility date.
N.J.S.A. 30:4-123.63(d); N.J.S.A. 30:4-
123.64; N.J.A.C. 10A:71-7.17B. The Panel also
must issue a written decision stating its
"particular reasons . . . and the facts relied
upon," N.J.A.C. 10A:71-7.18.
Where parole is revoked, the two-member
Panel's decision is appealable to the Board
on several grounds. Among the available
grounds are the Panel's failure to consider
material facts; its failure to document the
clear and convincing evidence of serious or
persistent violations; and its entry of a
decision "contrary to written Board policy or
procedure." N.J.A.C. 10A:71-4.1(e)(1)-(3).
Pursuant to Rule 2:2-3(a)(2), appeal to this
court is from the agency's final decision.
[Hobson v. N.J. State Parole Bd., 435 N.J.
Super. 377, 382-83 (App. Div. 2014).]
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III.
Our scope of review is limited. We recognize the Board "has
broad but not unlimited discretionary powers" in rendering parole
decisions. Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173
(2001) (quoting Monks v. N.J. State Parole Bd., 58 N.J. 238, 242
(1971)). Generally, the Board's actions are presumed valid and
reasonable, In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993),
aff'd, 135 N.J. 306 (1994), as its decisions are considered highly
"individualized discretionary appraisals." Trantino, supra, 166
N.J. at 173 (quoting Beckworth v. N.J. State Parole Bd., 62 N.J.
348, 359 (1973)). Despite the Board's broad discretion, we review
the decision as we do those of other administrative agencies to
determine whether the Board has exercised its power arbitrarily
or capriciously. Trantino, supra, 166 N.J. at 172-73. In
conducting that review, we must consider:
(1) whether the agency's action violates
express or implied legislative policy, i.e.,
did the agency follow the law; (2) whether the
record contains substantial evidence to
support the findings on which the agency based
its action; and (3) whether in applying the
legislative policies to the facts, the agency
clearly erred in reaching a conclusion that
could not reasonably have been made on a
showing of the relevant factors.
[Id. at 172 (quoting Trantino v. N.J. State
Parole Bd., 154 N.J. 19, 24 (1998)).]
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"A court may not substitute its judgment for that of the
agency[.]" McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544,
563 (App. Div. 2002) (citation omitted). Therefore, we accord the
Board's decision a presumption of validity, and the burden is on
the challenging party to show that an action was arbitrary,
unreasonable, or capricious. An administrative agency's decision
will only be set aside if there is, "a definite conviction that
the determination below went so far wide of the mark that a mistake
must have been made." N.J. State Parole Bd. v. Cestari, 224 N.J.
Super. 534, 547 (App. Div.) (citation omitted), certif. denied,
111 N.J. 649 (1988).
Applying these standards, we find no basis to disturb the
Board's decision to revoke James's parole supervision and set a
twelve-month FET. The revocation hearing in this case comported
with all statutory and due process requirements. It is undisputed
that James first tested positive for marijuana, which he conceded,
and later refused to submit a urine sample when directed to do so
in accordance with a urine collection procedure that was properly
administered. There was adequate evidence to support a finding,
by clear and convincing evidence, that James violated the
conditions of his parole supervision, and that those violations
were serious and not merely technical or insignificant in nature.
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Thus, we hold that the Board's decision was not arbitrary,
capricious, or unreasonable.
Affirmed.
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