Submitted: April 2, 2014.
Approved for Publication April 29, 2014.
On appeal from the New Jersey State Parole Board.
Destribats Campbell, LLC, attorneys for appellant ( Raymond C. Staub, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent ( Lisa A. Puglisi, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).
Before Judges GRALL, NUGENT and ACCURSO. The opinion of the court was delivered by GRALL, P.J.A.D.
[435 N.J.Super. 381] GRALL, P.J.A.D.
Basim Hobson appeals from a final decision of the Parole Board (Board) revoking his release status on a mandatory five-year term of parole supervision imposed pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and setting a nine-month future eligibility term. Hobson's release was revoked for violating two conditions imposed by the Board: general condition number 9, " to refrain from the use, possession or distribution of a
controlled dangerous substance, controlled substance analog, or imitation controlled dangerous substance as defined in N.J.S.A. 2C:35-2 and N.J.S.A. 2C:35-11[,] as evidenced by [your] arrest in the City of Plainfield on 10/05/11 for [p]ossession of Marijuana/Hash under 50 Grams" ; and one special condition, " refrain from the purchase, possession and use of any alcohol[,] as evidenced by [your] admission to the use of alcohol on 10/05/11."
The evidence was inadequate to support a finding that Hobson violated general condition number 9, and the evidence of the violation of the special condition and Hobson's record on parole was inadequate to support a finding that Hobson " seriously or persistently violated the conditions" of his release status, as required by N.J.S.A. 30:4-123.60(b) and N.J.S.A. 30:4-123.63(d). Accordingly, we reverse and vacate the revocation of Hobson's release status; affirm the Board's determination of violation of the [435 N.J.Super. 382] special condition; and remand for reconsideration of any modification of the condition of Hobson's release warranted because of his violation of the special condition.
" A person who has been sentenced to a term of parole supervision and is on release status in the community pursuant to" N.J.S.A. 2C:43-7.2 is " subject to the provisions and conditions set by the appropriate [B]oard panel." N.J.S.A. 30:4-123.51b(a). That statute also gives the Board authority " to revoke the person's release status and return the person to custody for the remainder of the term or until it is determined, in accordance with regulations adopted by the [B]oard, that the person is again eligible for release . . . ." Ibid.
The Board must exercise its authority to revoke release status " in accordance with the procedures and standards" codified in N.J.S.A. 30:4-123.59 through N.J.S.A. 30:4-123.65. N.J.S.A. 30:4-123.51b(a). The statutory standards referenced permit revocation only on proof by clear and convincing evidence that the person " has seriously or persistently violated the conditions," N.J.S.A. 30:4-123.60(b) and N.J.S.A. 30:4-123.63(d), or that the person has been " convicted of a crime" while released, N.J.S.A. 30:4-123.60(c); see also N.J.A.C. 10A:71-7.12(c)(1)-(2).
The Legislature did not further define the type of conduct it intended to capture within the statutory standard - " seriously or persistently violated." And the Board has not adopted a regulation to guide exercise of its expertise to distinguish cases in which parole should and should not be revoked.
The Legislature also codified procedures for revocation that require the Board to afford persons facing revocation of release status significant procedural protections. In addition to requiring proof by clear and convincing evidence, the Legislature has mandated notice of the alleged violation, a probable cause hearing, and a subsequent revocation hearing, at which the parolee has a right to confront his or her accusers, testify, present evidence, subpoena [435 N.J.Super. 383] witnesses and have counsel appointed. N.J.S.A. 30:4-123.62 to -123.63.
Revocation hearings are conducted by a hearing officer, who must make a record and provide reasons for his or her recommendation to a two-member Panel of the Board in writing. N.J.S.A. 30:4-123.63. The hearing officer's written summary is given to the two-member Panel and the parolee's attorney, who may file exceptions with the Panel within seven days. N.J.A.C. 10A:71-7.16. The Panel makes its decision after reviewing the hearing officer's summary, the exceptions and the record. N.J.S.A. 30:4-123.63(d), (e); N.J.A.C. 10A:71-7.16 to -7.17B.
If the Panel revokes parole it must either establish a specific release date or a future eligibility date. N.J.S.A. 30:4-123.63(d); N.J.S.A. 30:4-123.64; N.J.A.C. 10A:71-7.17B. The Panel also must issue a written decision stating its " particular reasons . . . and the facts relied upon," N.J.A.C. 10A:71-7.18.
Where parole is revoked, the two-member Panel's decision is appealable to the Board on several grounds. Among the available grounds are the Panel's failure to consider material facts; its failure to document the clear and convincing evidence of serious or persistent violations; and its entry of a decision " contrary to written Board policy or procedure." N.J.A.C. ...