On appeal from the New Jersey State Parole Board.
Bischoff and King. The opinion of the court was delivered by King, J.A.D.
This appeal is taken from a decision of the State Parole Board rescinding a grant of parole from the New Jersey State Prison.
On December 7, 1979, appellant was convicted of attempted burglary and was thereafter sentenced to two to three years in State Prison. On July 1, 1980, the adult panel of the State
Parole Board granted appellant parole effective October 7, 1980. The effective parole date was subject to several conditions, including continuance of acceptable institutional conduct. Pending his parole date appellant was charged on July 27, 1980 with an institutional infraction, intoxication. Appellant was taken to the hospital for a urine specimen but was either unable to give one or refused to cooperate, according to Correction Officers Hairston and Butler.
On July 30, a prison disciplinary hearing (courtline) was held. The charge against appellant was submitted solely on written reports. Appellant was present at the hearing and was assisted by another inmate. Appellant presented no witnesses but relied on his statement and the statement of his counsel substitute. The record does not indicate any request by appellant or his representative to confront or cross-examine witnesses. Appellant was found guilty of the charge. The finding was administratively affirmed. No judicial appeal was taken therefrom to this court. R. 2:2-3(a)(2); State v. Rydzewski , 112 N.J. Super. 517, 520 (App.Div.1970). A prison punishment of reversion to maximum status and 15 days in lock-up and credit for time served was imposed.
On September 2, appellant was advised that his institutional infraction had been referred to the Parole Board. A hold was placed on his parole. A parole rescission hearing was held on September 23. Appellant testified and denied his guilt on the intoxication charge. On October 24, the Board rescinded appellant's October 7 parole date and required him to serve three additional months. He was paroled on January 27, 1981.
Appellant contends that the Parole Board denied him due process by accepting the courtline decision as res judicata , using it as the sole basis for his rescission. He asserts that the refusal to permit relitigation before the Parole Board of the administrative finding on the intoxication charge was a denial of fundamental fairness of constitutional dimension. The State contends that the question is moot since appellant was paroled months
ago and that the Office of the Public Defender is simply seeking a declaratory judgment from this court. The State contends that the strength of its mootness contention is revealed when the nature of the relief sought is considered; that is, a remand for a new rescission hearing which would be a totally meaningless act.
The potential collateral consequences to appellant attributable to his parole rescission in October 1980 are probably speculative and remote. They depend on whether he becomes reinvolved in the criminal justice system and what weight, if any, some future administrator or court might give to the parole rescission itself, over and above the administrative adjudication of intoxication. The authorities vary. One panel of this court has firmly ruled the question justiciable. Youth Correctional Center Bd. of Trustees v. Davis , 147 N.J. Super. 540 (App.Div.1977). Other cases have followed this precedent. See State v. Dalonges , 128 N.J. Super. 140, 143 (App.Div.1974); O'Neal v. N.J. State Parole Bd. , 149 N.J. Super. 174, 180 (App.Div.), app. dism., 75 ...