On appeal from the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 9, 2012
Before Judges Grall and Alvarez.
Gregory Hickman's parole was revoked for "seriously" violating the "conditions" of his parole, N.J.S.A. 30:4-123.60; N.J.S.A. 30:4-123.63, and he was given a one-year future parole eligibility date, N.J.S.A. 30:4-123.64. That determination was made by a two-member panel of the Parole Board (Board) based on a recommendation of a hearing officer and the officer's written report summarizing the testimony and evidence presented at a revocation hearing. Hickman now appeals from that final agency decision. R. 2:2-3(a)(2).
When the administrative proceedings commenced, Hickman was on parole from a twenty-year sentence imposed in 1996 based on his plea of guilty to first-degree robbery. Hickman was first paroled in June 2007, but in December 2007 that parole was revoked. Hickman was paroled a second time on October 27, 2008.
On July 24, 2009, Hickman was arrested on a parole warrant and charged with violating three conditions of his parole. The allegations were: 1) failure to refrain from the use, possession, or distribution of a controlled dangerous substance (CDS), a charge which was based on a police report indicating he possessed drugs on May 2, 2009; 2) failure to refrain from drug use, a charge which was supported by drug screens that were positive for marijuana; and 3) failure to successfully complete a Community Resource Center Program (CRC program), a charge which was based on his discharge from the CRC program due to a positive drug test and unexcused absences on thirteen of the fifty-four days he was to attend.
Three days after his arrest on the parole warrant, Hickman was given notice that a probable cause hearing would be scheduled. In that notice, the charges and the factual basis for each alleged violation were set forth, and the pertinent police report, parole records and report from the CRC program were provided along with that notice. Hickman was also advised of his right to have representation, remain silent, confront witnesses and present evidence. N.J.S.A. 30:4-123.62d; N.J.A.C. 10A:71-7.7.
For reasons not documented in the record presented on appeal, the probable cause hearing was not held until December 2009, about five months after Hickman's arrest on the parole warrant. Cf. N.J.S.A. 30:4-123.62b-c (requiring a preliminary hearing to assess probable cause within fourteen days and authorizing one fourteen-day extension); accord N.J.A.C. 10A:71-7.5. At the probable cause hearing, Hickman was represented by counsel, waived his right to a preliminary hearing, and elected to proceed directly to a final hearing on revocation.
In accordance with N.J.S.A. 30:4-123.63a, a hearing on the revocation of Hickman's parole hearing was conducted by a hearing officer who prepared a written summary of the evidence and stated his findings and conclusions. We have not been provided with the recording of the proceeding, and our statement of the evidence is based on the hearing officer's written notice of decision. See N.J.S.A. 30:4-123.63c (requiring the hearing officer to maintain a record); N.J.A.C. 10A:71-7.16 (requiring electronic recording of the proceeding and a written decision).
At the revocation hearing, Hickman testified and acknowledged his violation of two of the three conditions of parole. He admitted he failed to refrain from drug use and comply with the rules of the CRC program. Noting that he was incarcerated before he was eighteen, he explained that the CRC staff was not qualified to address his problems and that his inability to get a job led him to use marijuana. There was evidence of these violations beyond Hickman's admissions. Records of the CRC program reflect that he had unexcused absences on thirteen of the fifty-four days he was to attend the program and that he tested positive for marijuana. In addition, there was a laboratory report of another positive test for marijuana in January 2009, and Hickman admitted that he had used marijuana in July 2009 as well.
In contrast to his admitted violation of the two conditions of his parole, Hickman disputed the violation based on the allegation that he possessed marijuana on May 2, 2009. The police officer who contended that Hickman had marijuana that day testified at the revocation hearing. According to the officer, while he and other officers were investigating a report of a domestic dispute, he heard a motor vehicle crash and turned to investigate the accident while his colleagues addressed the disturbance.
The officer saw someone, whom he later identified as Hickman, get out of the car and limp away from it. According to the officer, Hickman was a holding a bag, and threw it into a dumpster as he passed the trash. The officer could not catch up with Hickman, but he went to the dumpster and removed a bag that was on top of the other trash. It contained what the officer "suspected" to be a CDS and a ten-dollar bill. The officer later saw Hickman's brother, who told him that Hickman had left the scene. At headquarters, the officer identified Hickman from ...