March 25, 2010
SHAKEEL DAWUD, APPELLANT,
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.
SHAKEEL DAWUD, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from the New Jersey State Parole Board (A-4341-08T3) and the New Jersey Department of Corrections (A-5331-08T3).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 1, 2010
Before Judges Lisa and Alvarez.
Shakeel Dawud, an inmate currently incarcerated at Bayside State Prison, appeals from disciplinary sanctions imposed upon his commission of an institutional infraction. Dawud also appeals the final administrative decision of the Parole Board (Board) affirming the three-member Board Panel (Panel) determination denying him parole and imposing a twelve-month future eligibility term (FET). Finally, Dawud appeals his objective classification score (OCS), which was "8" at the time his appeal was filed, resulting in a "medium" custody status. When that score was reviewed by the Department of Corrections (DOC) in-house, a lower score subsequently issued granting him a reduced custody status of "5," "full minimum" as of July 1, 2009. For the reasons that follow, we address the imposition of disciplinary sanctions and the twelve-month FET, and dismiss as moot the appeal of the OCS.
On September 24, 2008, Hearing Officer R. Makarski found Dawud guilty of violating N.J.A.C. 10A:4-4.1(a), prohibited act.256, which makes "refusing to obey an order of any staff member" a punishable offense. The sanction imposed for the violation was referral to the classification committee for a status review of his parole date. Dawud filed an appeal to the Commissioner of the DOC, and on September 25, 2008, Assistant Superintendent James Haas upheld the adjudication and resulting sanction.
As a result of the adjudication, an administrative hold was placed on Dawud's parole date. By letter dated October 21, 2008, the Board notified Dawud that a final parole rescission hearing would be scheduled in the near future. Dawud participated in a rescission hearing on November 3, 2008, at which time a Board hearing officer recommended that Dawud's prior grant of parole be rescinded. Accordingly, on November 12, 2008, the Adult Panel adopted the decision of the hearing officer and rescinded the prior May 22, 2008 Board decision which had granted Dawud parole effective January 7, 2009. In accord with Board regulations, Dawud was issued a twelve-month FET. This appeal followed.
The charge was lodged when Dawud was residing at a halfway house. A staff member saw Dawud in possession of a cell phone and directed that he surrender it. He refused to surrender the item, which was never located. Since the time of the incident, Dawud has insisted that the object was an iPod, not a cell phone.
Dawud appeals the imposition of disciplinary sanctions on the basis that since the cell phone was never located, the State did not meet its burden of proof. He mistakes the thrust of the infraction. The adjudication was not premised on his alleged possession of a cell phone, but on his refusal to turn the item over when ordered to do so by a staff member at the halfway house. In other words, the adjudication results from his refusal to comply with a staff member's order.
Prisoners are entitled to receive written notice of the charges against them at least twenty-four hours in advance of the hearing. Avant v. Clifford, 67 N.J. 496, 525 (1975). They are guaranteed an impartial "hearing tribunal," which may consist of personnel from the Central Office staff. Id. at 525-26. They must be provided a timely hearing at which they have the opportunity to present evidence and witnesses and cross-examine adverse witnesses. Id. at 528-32. They must have access to counsel substitute. Id. at 529. They are entitled to written notification of the evidence upon which the hearing officer relied in reaching his decision and his reasons for sanctions imposed. Id. at 531-32.
All the requisite procedural safeguards were met in this case, including the assignment of counsel substitute and Dawud's presentation of his defense that he possessed an iPod and not a cell phone. Dawud entered a not guilty plea although he declined to present witnesses and declined to cross-examine or confront adverse witnesses. Adjudication sheets were presented to Dawud and his counsel substitute, and counsel substitute signed the appropriate form indicating that the information relied upon by the hearing officer accurately reflected the proofs presented during the hearing.
An adjudication of guilt of a disciplinary infraction must be supported by "substantial evidence." See Jacobs v. Stephens, 139 N.J. 212, 222 (1995). See also Avant v. Clifford, supra, 67 N.J. at 530; N.J.A.C. 10A:4-9.15(a). The proofs in this case met that standard. Dawud himself does not dispute that when directed to turn over the item in his possession, he failed to do so.
An "appellate court will reverse the decision of an administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). Dawud's conduct indisputably falls within the purview of disciplinary infraction.256. Nothing in the record would cause us to disturb the hearing officer's conclusion.
Dawud claims it was error for the Board to have concluded that there was a reasonable expectation that he would violate his conditions of parole if released, due to the disciplinary infraction. His argument is that since he was not guilty, the Board cannot draw any conclusions about his future likelihood of success while on parole as a result of the adjudication.
The adjudication is, however, res judicata unless Dawud can show that the disciplinary decision was overturned on appeal. See N.J.A.C. 10A:71-2.4(c). The Board may properly rely upon the adjudication as a final agency determination when making its parole eligibility determination. N.J. State Parole Bd. v. Gray, 200 N.J. Super. 343, 349 (App. Div. 1985); N.J. State Parole Bd. v. Woupes, 184 N.J. Super. 533, 536-37 (App. Div. 1981). The infraction made the rescission of Dawud's parole inevitable and unassailable.
Our standard of review of Board decisions is of necessity limited, as "the substantive principles governing parole do not confer a constitutional right or entitlement." Trantino v. N.J. State Parole Bd. ("Trantino IV"), 154 N.J. 19, 24 (1998). As with any other agency decision, we examine whether "the agency follow[ed] the law," whether the record supported the agency's action, and whether in its application of legislative policy 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." Ibid. Because the Board's principal focus is whether an inmate will reoffend if released, we must also determine whether substantial credible evidence in the record supports the Board's conclusions. Ibid. We only reverse where the decision is found to be arbitrary, or an abuse of discretion. Id. at 25.
In Dawud's case, the grant of parole was rescinded on April 29, 2009, because of the disciplinary infraction. Dawud's prior grant of parole is reviewable under these circumstances pursuant to N.J.S.A. 30:4-123.58 and N.J.A.C. 10A:71-5.5. The statutory scheme authorizes the Board to act based upon information brought to its attention that was not previously available.
A Board decision is only set aside "'if there exists in the reviewing mind a definite conviction that the determination 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. 1988) (quoting 613 Corp. v. State of N.J., Div. of State Lottery, 210 N.J. Super. 485, 495 (App. Div. 1986)). No mistake occurred here. Substantial credible evidence was available to the Board not previously known because the conduct in question did not occur until after the initial parole determination was made.
Once Dawud was denied parole, a new FET date had to be calculated pursuant to the schedule found at N.J.A.C. 10A:71-3.21. See N.J.S.A. 30:4-123.56. N.J.A.C. 10A:71-5.5 clearly authorizes the Board to rescind parole release dates.
Hence, the Board's decision was in accord with applicable law and legislative policies, and was supported by substantial evidence.
Dawud's contention that he should have been permitted to remain in the halfway house after the commission of the disciplinary infraction entirely lacks merit. Similarly, his challenge to the calculation of his current parole FET date lacks merit. Dawud argues his current parole ineligibility date of January 2010 is five months beyond the twelve-month FET imposed by the Board. The original twelve-month FET expired in September 2009, however, at which time Dawud received another Panel hearing. It was at that hearing that Dawud was ordered to serve the maximum term of incarceration.
Dawud also appeals his OCS of 8 at the time of the filing of the appeal. An issue is considered moot if it "'has been resolved, at least with respect to the part[y] who instituted the litigation.'" Enron (Thrace) Exploration v. Clapp, 378 N.J. Super. 8, 13 (App. Div. 2005) (quoting Caput Mortuum, L.L.C. v. S & S Crown Servs. Ltd., 366 N.J. Super. 323, 330 (App. Div. 2004). According to the State's brief, Dawud's status is currently 5. His complaint about his status has been resolved; therefore, we find Dawud's arguments related to the reclassification to be moot.
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