December 13, 2013
OMAR BROADWAY, Plaintiff-Appellant,
NEW JERSEY STATE PAROLE BOARD, Defendant-Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 13, 2013
On appeal from the New Jersey State Parole Board.
Omar Broadway, appellant pro se.
John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Shirley P. Dickstein, Deputy Attorney General, on the brief).
Before Judges Alvarez and Ostrer.
On November 16, 2000, Omar Broadway was sentenced to an aggregate term of twelve years, subject to the No Early Release Act's (NERA) eighty-five percent parole ineligibility. See N.J.S.A. 2C:43-7.2(a). The offenses included two counts of third-degree drug distribution, N.J.S.A. 2C:35-5; one count of fourth-degree resisting arrest, N.J.S.A. 2C:29-2; first-degree carjacking, N.J.S.A. 2C:15-2; third-degree possession of a prohibited weapon (sawed-off shotgun), N.J.S.A. 2C:39-3(b); second-degree conspiracy, N.J.S.A. 2C:5-2; and second-degree possession with intent to distribute within 500 feet of a public housing complex, N.J.S.A. 2C:35-7.1.
On February 2, 2011, having served his maximum sentence, Broadway was released from custody into the supervision of the Division of Parole to serve the statutory NERA five-year mandatory parole supervision term. On February 2, 2012, however, a parole revocation hearing was conducted arising from Broadway's failure to notify his parole officer of an arrest, and his failure to remain drug-free.
The hearing officer concluded that Broadway had been arrested on December 15, 2011, but did not inform his parole officer of that fact until December 21, 2011. Broadway's parole officer learned of the arrest on December 19, 2011, from the State police. Broadway had actually called and spoken to his parole officer on December 20, 2011. He did not mention the arrest during that call. It was not until the following day that he disclosed it.
The hearing officer also found that Broadway admitted to using marijuana on September 13, 2011, and Tylenol with codeine on October 23, 2011, while on parole. Broadway tested positive for marijuana on December 14, 2011. Given these findings, the hearing officer recommended revocation of Broadway's parole.
On March 21, 2012, a two-member panel of the New Jersey State Parole Board (Board) affirmed the hearing officer. That decision, issued March 21, 2012, and delivered to Broadway on March 27, 2012, imposed a twelve-month future eligibility term (FET). On May 7, 2012, Broadway filed an appeal of the decision with this court, which appeal was dismissed on September 25, 2012, due to Broadway's failure to exhaust his administrative remedies.
Pursuant to N.J.A.C. 10A:71-4.2(a), an administrative appeal must be filed within ninety days of the receipt of the decision by the inmate. Because Broadway did not file with the Board until September 25, 2012, on September 27, 2012, the agency advised him in writing that the appeal should have been filed by June 27, 2012, and was therefore out of time. Nonetheless, the Board went on to state:
Pursuant to Board policy, an out of time appeal may be accepted for good cause shown. Therefore, please provide  an explanation and any supporting documentation of the reason for the delay in filing your appeal so that the Board can determine whether you have demonstrated good cause to accept it out of time. Please send your response  in writing by October 11, 2012 so that it can be presented at the Board's October meeting. If I do not receive anything from you by October 11, 2012 the Board will make the determination whether to accept your appeal without your input.
On November 7, 2012, the Board again wrote to Broadway as follows:
Please be advised that your request to have the State Parole Board accept your appeal out of time was presented to the full Board at its October 31, 2012 meeting.
At the time of your Panel hearing on March 21, 2012, N.J.A.C. 10A:71-4.2(a) required that all appeals shall be filed within 90 days of the inmate's receipt of the Panel's decision. Your appeal was not received until September 25, 2012, three (3) months out of time.
As indicated in my letter to you on September 27, 2012, I advised that the Board would consider your case for good cause if you provided an explanation as to why you were filing beyond the 90 days as N.J.A.C. 10A:71-4.2(a) required. Your failure to provide an explanation was presented to the full Board at its November 7, 2012 meeting and the Board rendered a decision not to accept your appeal out of time. Therefore, you have exhausted your administrative remedies with the Board and no further action will be taken in this matter.
Broadway did not explain his delay to the Board, despite being afforded the opportunity to do so. In his merits brief to us, Broadway does not mention the basis for the Board's dismissal of his appeal, i.e., that it was submitted out of time. He contends, for a host of reasons, only that his parole was wrongfully revoked.
We apply the same standard to parole decisions as we do other agency determinations. See Trantino v. N.J. State Parole Bd., 154 N.J. 19, 25 (1998) (Trantino IV). Such decisions "should not be reversed by a court unless found to be arbitrary . . . or an abuse of discretion." Ibid. (internal citations omitted). We find nothing arbitrary or capricious in the Board having advised Broadway of the procedural bar that prevented review of the hearing officer's decision, extended him the opportunity to explain the delay, and hearing none, dismissing his appeal. Hence, we affirm.