April 20, 2010
NOEL JONES, APPELLANT,
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.
On appeal from New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 23, 2010
Before Judges Parrillo and Lihotz.
Appellant, Noel Jones, remains incarcerated at East Jersey State Prison, Rahway, serving a cumulative sentence of twenty years for: first-degree possession of a controlled dangerous substance (CDS) with intent to distribute in a city park; second-degree eluding; possession of CDS; and aggravated assault. Jones appeals from a final decision of the State Parole Board (the Board), issued on February 4, 2009, which affirmed the Board panel's decision revoking parole and establishing a twelve-month future eligibility term (FET).
On appeal, appellant presents the following arguments:
THE DECISION BY THE PAROLE BOARD SHOULD BE REVERSED WHERE IT WAS BASED ON INACCURATE INFORMATION THAT WAS UNAVAILABLE AT THE TIME OF THE REVOCATION HEARING, WHEREFORE THE COURT SHOULD GRANT SUMMARY DISPOSITION.
Also, in a subsequently filed "reply" brief, Jones argues:
THE PAROLE BOARD ABUSE OF REVOKING JONES PAROLE AND ENHANCING JONES SENTENCE ON THREE SEPARATE OCCASIONS WAS NOT SUPPORTED BY SUBSTANTIAL OR CLEAR AND CONVINCING EVIDENCE, IN FACT THE EVIDENCE HEAVILY RELIED ON WAS NOT ONLY DISMISSED BUT NEITHER CONFIRMED OR VALIDATED BY LABORATORY ANALYSIS TO BE CDS. THE DENIAL OF JONES PAROLE BASED ON FICTITIOUS EVIDENCE MUST NOT STAND.
THE DUE PROCESS VIOLATION IN THIS MATTER ARE WHOLESOME.
We have considered appellants contentions in light of the record and the applicable law, and we affirm.
Following his guilty plea on the charges, Jones was sentenced on September 5, 1997. Jones later pled guilty to another accusation for similar charges and his sentence for these offenses was to run concurrently with the prior sentence.
Jones was paroled on March 14, 2005. On September 8, 2006, he was again arrested for possession of CDS and motor vehicle offenses after a traffic stop. Jones was later charged with violating the conditions of parole and returned to custody. The charges emanating from this arrest were later dismissed.
Jones waived a probable cause hearing on the parole violation, and a revocation hearing was held on November 20, 2006. Jones testified that he was unaware there was CDS in the vehicle and that it must have belonged to whoever drove the car before him. Jones's parole officer related the terms of Jones's parole and the records of his compliance to date. Additionally, testimony was provided by Trooper James Kennedy, the arresting police officer, who stopped Jones's vehicle for driving erratically. Trooper Kennedy saw what he believed was marijuana on the passenger-side floor. A later search of the vehicle revealed a plastic bag containing nineteen white paper folds of suspected heroin inside the interior handle of the passenger-side door.
Crediting Trooper Kennedy's testimony, the hearing officer determined the CDS was in plain view, clearly contradicting Jones's statement that he was unaware CDS was in the vehicle. Based on this evidence, and the fact that Jones was the sole occupant in the car, the hearing officer concluded Jones had failed to fulfill a condition of his parole, which required him to refrain from the use, possession or distribution of CDS.
On December 20, 2006, a two-member board panel (panel) reviewed the record and the hearing officer's recommendation. The panel revoked Jones's parole and imposed a twelve-month FET. Jones appealed. The full Board affirmed. This appeal ensued.
Our scope of review is limited. As an administrative agency, the actions of the Board are presumed valid and reasonable. In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J. 306 (1994). When reviewing the decision of a state agency, such as the Board, we must determine whether the agency's findings could reasonably have been reached on sufficient credible evidence in the record. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). We must affirm unless the determination by the Board is shown to be arbitrary or an abuse of discretion, Trantino v. N.J. State Parole Bd., 154 N.J. 19, 25 (1998) (Trantino IV), "'went so far wide of the mark that a mistake must have been made.'" New Jersey State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.) (quoting 613 Corp v. State of N.J., Div. of State Lottery, 210 N.J. Super. 485, 495 (App. Div. 1986)), certif. denied, 111 N.J. 649 (1988).
The decision of a parole board involves "highly 'individualized discretionary appraisals.'" Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (Trantino VI) (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)). Such decisions represent a "'discretionary assessment of a multiplicity of imponderables, entailing primarily what a man is and what he may become rather than simply what he has done.'" Greenholtz v. Neb. Penal & Corr. Complex Inmates, 442 U.S. 1, 10, 99 S.Ct. 2100, 2105, 60 L.Ed. 2d 668, 677 (1979) (quoting Sanford H. Kadish, The Advocate and the Expert -- Counsel in the Peno-Correctional Process, 45 Minn. L. Rev. 803, 813 (1961)).
Jones's allegations of due process violations and the suggestion that parole revocation was based on "fictitious evidence" appear to be based on the fact that the State declined to proceed on the new charges once parole was revoked and he returned to custody. Jones maintains he was not afforded a hearing on these offenses, and the State was never required to prove the substances seized were CDS. Therefore, he was returned to prison "on a dismissed criminal charge." We reject these contentions as meritless. R. 2:11-3(e)(1)(E).
Our review of the record confirms the Board's decision in this case is fully supported by substantial credible evidence in the record and Jones was provided all the process he was due. See Morrissey v. Brewer, 408 U.S. 471, 487-89, 92 S.Ct. 2593, 2602-05, 33 L.Ed. 2d 484, 497-99 (1972) (setting forth the necessary due process rights for parole revocations). Jones was given written notification of the charges, told of the State's evidence, afforded an opportunity to be heard before the hearing officer, permitted to confront the State's witnesses, and was provided with a written determination following the hearing.
Jones's history of drug possession and distribution were properly considered by the Board. Even though the charges were later dismissed, Jones's possession of CDS sufficiently supported the Board's finding that he violated the conditions of parole, warranting revocation.
Finally, the twelve-month FET reflects the Board's expertise as applied to appellant's individual circumstances. See N.J.A.C. 10A:71-3.21(a). The length of the FET was neither unfair nor unreasonable. Accordingly, we discern no basis to disturb the Board's decision denying parole and setting an FET.
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