QUAMARE ALSTON v. NEW JERSEY STATE PAROLE BOARD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4310-04T54310-04T5

QUAMARE ALSTON,

Petitioner-Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent-Respondent.

__________________________________

 

Submitted September 11, 2006 - Decided September 25, 2006

Before Judges Seltzer and C.L. Miniman.

On appeal from a Final Decision of the New Jersey State Parole Board.

Quamare Alston, appellant pro se.

Anne Milgram, Acting Attorney General, attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Kimberly A. Sked, Deputy Attorney General, on the brief).

PER CURIAM

Plaintiff Quamare Alston, an inmate at South Woods State Prison in Bridgeton, New Jersey, was sentenced on June 30, 2000, under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to a maximum six-year sentence for a conviction of second-degree aggravated assault with a consecutive 180-day sentence for a conviction of simple assault. He was released to a three-year period of mandatory parole supervision on May 10, 2004, but on September 14, 2004, he was charged with a parole violation in a Probable Cause Notice. At the September 30, 2004, probable cause hearing, Alston's parole was revoked and a Future Eligibility Term was established at two years, two months, and eight days. Alston's administrative appeal was denied and this appeal followed. We affirm.

Alston was charged with a violation of one of the special conditions imposed on his parole. Alston had agreed to be "evaluated by a mental health program designated by the District Parole Office and, upon completion of the evaluation, . . . to comply with the recommended course of counseling/therapy." As a result of that evaluation, Alston was required to attend weekly counseling sessions to address his lack of anger management skills. During his first appointment with the therapist, he was advised that the counseling session fee was twenty dollars.

Because Alston was unemployed, Alston told his parole officer early in July about his difficulty in paying. In order to assist him, Alston's parole officer helped him with his job search by requiring him to enroll in an unemployed offender's class, helped him obtain a bus pass, and referred him to Labor Ready, where he could work per diem and get paid that same day. He worked at Labor Ready one day but did not return, deciding instead to seek steady employment. Alston remained unemployed throughout the summer. Alston did not advise his parole officer in August that he still could not pay for the counseling sessions.

Alston began skipping the anger management counseling sessions altogether. On August 11, 2004, the District Parole Office learned that Alston had missed four sessions and that if he missed the next session, he would be dismissed from the program. Alston's parole officer specifically warned him that he had to attend the anger management counseling or face revocation of parole. Alston agreed to comply.

Alston went to his next anger management counseling session, but arrived late. On August 26, 2004, the therapist advised the District Parole Office that if Alston was late or missed the next session, he would be discharged from the program. That day, Alston's parole officer again warned him that he could not miss or be late for the anger management counseling.

On September 1, 2004, Alston's therapist contacted his parole officer, reiterating that Alston needed to be at the session and be on time, or he would be discharged from the program. The therapist stated that when Alston did come to therapy, he participated in the session; however, he still had a lot of anger management issues to address.

On September 7, 2004, Alston missed another counseling session and was discharged from the program for lack of attendance and noncompliance. Alston claimed that he went to the session but that the therapist's door was locked, so he left. The therapist denied this claim. The therapist stated that she had made a point of leaving the door open at the time of his September 7, 2004, appointment because Alston had used this excuse previously.

Alston waived the probable cause hearing and proceeded to a final parole revocation hearing. The hearing officer found that, based on the evidence in the record and Alston's own admission, Alston had failed to complete successfully a required anger management program, thereby violating his parole. The hearing officer found that Alston was facing his second parole revocation, since he had previously violated parole as a juvenile, and parole was revoked. The hearing officer listed Alston's prior juvenile adjudications for simple assault, two counts of aggravated assault, conspiracy to commit aggravated assault, violation of parole, robbery, and attempt to kill.

The hearing officer found that clear and convincing evidence showed that Alston seriously and persistently violated the conditions of his parole, and that revocation was warranted. Specifically, the hearing officer found that:

Subject presents as an individual with a very serious and violent prior history. This special condition of the successful completion of a mental health counseling program, IE Anger Management was imposed by the Board to ensure that subject addressed those issues that caused him to perpetrate violence against society. Subject has failed to take advantage of the opportunity to address these issues. What is of particular concern to this Hearing Officer is a statement made by [his therapist] in her 09/08/04 letter. The paragraph that concerns this Hearing Officer is as follows: "Mr. Alston's behavior shows a blatant disregard for rules in addition to an overwhelming disrespect for authority. Mr. Alston seems to be under the false impression that parole's counseling mandate is an option versus a serious contractual agreement which he entered freely with the State of New Jersey as a condition for early release."

Given the above, this Hearing Officer is of the opinion that subject's untreated mental health issues make him a danger to the community at the present time and that all future treatment afforded to subject should be done within the confines of the Department of Corrections and not in the community.

The hearing officer recommended revocation of parole and directed that Alston be transferred to the Central Reception and Assignment Facility of the Department of Corrections.

On November 5, 2004, a two-member adult panel of the New Jersey State Parole Board concurred with the hearing officer's recommendation, revoked Alston's parole, and imposed a two-year, two-month, and eight-day future eligibility term, the balance of Alston's mandatory parole supervision term. After filing his notice of appeal, we remanded the matter to the Parole Board for an administrative appeal. The board found that there was clear and convincing evidence that Alston had seriously and persistently violated the conditions of parole and affirmed the revocation of parole. Alston raises the following issues for our consideration:

POINT I - THE NEW JERSEY STATE PAROLE BOARD, ADULT PANEL, SERIOUSLY ERRED WHEN IT RENDERED ITS ARBITRARY AND CAPRICIOUS DECISION REVOKING APPELLANT'S PAROLE.

POINT II - THE NEW JERSEY STATE PAROLE BOARD, ADULT PANEL, PRESENTED INACCURATE AND CONTRARY INFORMATION, WHICH SUBSTANTIALLY AFFECTED THE DECISION BEING APPEALED.

POINT III - THE NEW STATE PAROLE BOARD, ADULT PANEL, SERIOUSLY ERRED WHEN IT FAILED TO CONSIDER MATERIAL FACTS.

Our review of a parole determination is limited to an evaluation of whether the Parole Board acted arbitrarily or abused its discretion in rendering its decisions. In re Hawley, 98 N.J. 108, 112 (1984); Monks v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971). In conducting this limited review, courts have accorded agency actions presumptions of validity and reasonableness. In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J. 306 (1994). The burden is on the challenging party to show that the Board's actions were unreasonable. Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div. 1993), certif. denied, 135 N.J. 469 (1994). Thus, we review the record to determine whether the Board's findings could reasonably have been reached on the credible evidence in the record. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). In addition, revocations of mandatory parole supervision must be supported by clear and convincing evidence in the record. N.J.A.C. 10A:71-7.15(c).

Alston contends that the Parole Board acted in an arbitrary and capricious manner in revoking his parole because it failed to articulate that there was a substantial probability or likelihood that Alston would commit a crime or violate the conditions of parole if released, relying on N.J.A.C. 10A:71-6.4(a)(4) and -6.4(d) or (e). These administrative rules govern conditions of parole and not revocation of parole, as here. The standards applicable to parole revocation are found in subchapter seven, not six. N.J.A.C. 10A:71-7.1 to -7.21. Specifically, N.J.A.C. 10A:71-7.12 provides:

(c) If the parolee has not been convicted of a crime committed while on parole or in the case of a juvenile parolee not adjudicated delinquent for an act which, if committed by an adult, would constitute a crime, the purpose of the revocation hearing shall be to determine:

 
1. Whether, by clear and convincing evidence, the parolee has seriously or persistently violated the conditions of parole; and

 
2. Whether revocation of parole is desirable.

The evidence before the Board and before us clearly and convincingly establishes that Alston repeatedly failed to attend anger management counseling, claiming he was unable to pay for same. In fact, he missed at least five weekly sessions over three months of scheduled sessions. As to his alleged inability to pay, he voluntarily elected not to work at Labor Ready, which would have generated sufficient income for him to pay for his counseling. Also, Alston did not avail himself of the financial assistance his family offered to provide at the commencement of his parole. Here, the evidence is clear and convincing that the Board did not abuse its discretion in revoking parole.

Alston next contends that the condition of parole, paying for and attending anger management counseling, was an undue hardship in light of his unemployment and never should have been imposed in the first place. Furthermore, he asserts that the Board never considered that he had used all the resources available to him to comply with the conditions of his parole supervision. These claims are also not supported by the record.

Alston was given until the end of June to start his counseling sessions in order to permit him to secure work. The Parole Board also assisted Alston in finding employment. It was Alston that spurned the Labor Ready work, which would have permitted him to pay for his counseling sessions. Alston also spurned assistance from his family, who had offered to pay for the counseling. Clear and convincing evidence supported the Board's determination that Alston failed to avail himself of the revenue sources available to him, i.e., Labor Ready and his family, in order to pay for his anger management counseling.

Alston also contends that the Board did not take into consideration the opinion of his counselor that he participated in the sessions that he attended and that she would reenroll him if the Board continued his parole. However, Alston's therapist also criticized him by stating that he had a blatant disregard for rules, was disrespectful of authority and had displayed only two redeeming qualities during the five months preceding the report. The record establishes that the hearing officer and the Parole Board, indeed, considered the entirety of the letter from Alston's therapist. Her continued willingness to work with him did not diminish the weight of her criticisms, which clearly and convincingly established that Alston violated the terms of his mandatory supervised parole.

Finally, Alston contends that he advised his parole officer that he was not able to pay for the anger management counseling in hopes of obtaining assistance, but he was not provided with any financial assistance from the Board. He complains that a majority of programs are offered to parolees without expense and that he was unfairly treated by having to pay for his therapy. The parole officer log reflects that on June 1, 2004, the therapist advised the parole officer that Alston had expressed that he needed a job and had no way to pay for his treatment. Yet, he was given assistance in securing employment. He was instructed to report to DRC on June 4, 2004, and was attending the unemployed offenders program. In the meantime, his mental health counseling was not scheduled to begin until June 28, 2004. The only time Alston complained to his parole officer that he was not able to pay the $20 per session for counseling was on July 6, 2004. The parole officer immediately referred him to Labor Ready where he could get paid for a day's work that same day. On July 21, 2004, the parole officer logged that Alston had completed the unemployed offender program at the DRC, had worked only one day at Labor Ready, and had decided to look for steady employment instead of taking advantage of Labor Ready. He did not communicate again with his parole officer about his inability to pay for the therapy. The evidence clearly and convincingly establishes that Alston did not take advantage of the resources available to him and parole was properly revoked.

Affirmed.

 

Alston had a lengthy juvenile record of violent offenses. This conviction was his first as an adult.

There is a discrepancy in the record as to the exact number of sessions missed, but we do not consider this discrepancy to be material. What is material is the decision of the therapist to terminate counseling.

(continued)

(continued)

11

A-4310-04T5

 

September 25, 2006