DASHAWN GEORGE v. NEW JERSEY STATE PAROLE BOARD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DASHAWN GEORGE, a/k/a

DESHAWN GEORGE,

Appellant,

v.

NEW JERSEY STATE

PAROLE BOARD,

Respondent.

___________________________

December 21, 2016

Submitted October 27, 2016 Decided

Before Judges O'Connor and Whipple.

On appeal from the New Jersey State Parole Board.

Dashawn George, appellant pro se.

Christopher S. Porrino, Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).

PER CURIAM

Dashawn George, an inmate in a halfway house, appeals from the New Jersey State Parole Board's (Board) August 27, 2014 final order revoking his parole and imposing a twelve-month Future Eligibility Term (FET). We affirm.

George was sentenced to a custodial term of ten years for armed robbery, and pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, was subject to five years of mandatory parole supervision upon his release from custody. On March 24, 2013, George was released and began serving his period of mandatory parole supervision. George was required to refrain from the possession and distribution of controlled dangerous substances (CDS), and enroll and participate in a substance abuse counseling program.

On May 8, 2013, George was discharged from an out-patient drug counseling program at the Jersey City Medical Center for non-attendance. On November 30, 2013, he was observed selling marijuana by two Jersey City police officers. The officers observed two separate individuals approach George, who after a brief conversation, retrieved a plastic bag from a retaining wall in a nearby vacant lot. George then returned to the individuals, handed them the items, and accepted currency. The officers arrested George, recovered the plastic bag from the retaining wall, and discovered ten additional bags of marijuana, packaged in a manner consistent with narcotic sales. The transactions occurred within 1,000 feet of a school. George was charged with possession and distribution of CDS, and distribution of CDS within 1,000 feet of a school.

George was served with a Notice of Probable Cause Hearing on December 3, 2013. The hearing was conducted on February 19, 2014, wherein George was represented by counsel and waived the probable cause inquiry. The matter proceeded as a final parole revocation hearing. Senior Parole Officer Cynthia Burcyzk, as well as the arresting officer, testified. The officer testified about his observation of George selling CDS. Burcyzk testified, based upon George's arrest for CDS offenses and his unsuccessful discharge from the substance abuse counseling, she recommended George's parole be revoked. George also testified at the hearing and admitted he was unsuccessfully discharged from the substance abuse program but denied possession and distribution of CDS. The hearing officer found by clear and convincing evidence that George violated the conditions of his supervision.

On March 19, 2014, a two-member Board Panel (Panel) reviewed the hearing officer's decision and concurred that George violated the conditions of his parole, the general condition to refrain from possession or distribution of CDS and the special condition to enroll and participate in a substance abuse counselling program. The Panel revoked George's parole and imposed a twelve-month FET.

On June 5, 2014, George filed an administrative appeal of his revocation of parole and the twelve-month FET. On August 27, 2014, the full Board affirmed the Panel's decision. This appeal followed.

George argues on appeal the Board's decision was arbitrary and capricious, as he was never in possession of any drugs nor was he found guilty of the underlying crime that resulted in his revocation of parole. Additionally, George argues the Board did not follow the proper procedures, and the Board's findings were not supported by clear and convincing evidence that George violated his parole. We disagree.

The scope of our review of final decisions of administrative agencies is limited. Decisions of the Board, like those of other administrative agencies, are not reversed unless they are "arbitrary, capricious or unreasonable or [are] not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).

Revocations of parole must be supported by clear and convincing evidence. N.J.A.C. 10A:71-7.12(c)(1). Clear and convincing evidence has been defined as "evidence upon which the trier of fact can rest 'a firm belief or conviction as to the truth of the allegations sought to be established.'" In re Registrant R.F., 317 N.J. Super. 379, 384 (App. Div. 1998) (quoting In re Purrazzella, 134 N.J. 228, 240 (1993)). Evidence must be "so clear, direct and weighty and convincing as to enable [either a judge or jury] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue." In re Seaman, 133 N.J. 67, 74 (1993) (quoting In re Boardwalk Regency Casino License Application, 180 N.J. Super. 324, 339 (App. Div. 1981), modified, 90 N.J. 361 (1982)).

George's violation of his mandatory parole supervision was established by clear and convincing evidence. As a condition of parole, George was to refrain from possession and distribution of any CDS. George argues he was never in possession of CDS, as the police did not find any on his person. However, the testimony of the arresting officer established by clear and convincing evidence George was in possession of CDS and was distributing CDS on the night of November 30, 2013, in Jersey City. While CDS was not found on George's person, officers saw him remove a bag from a retaining wall in a nearby vacant lot and exchange the item in the bag for currency. The officers recovered the plastic bag from the retaining wall and discovered ten additional bags of marijuana, packed in a manner consistent with narcotic sales. While the marijuana may not have been discovered on George's person, it was established by clear and convincing evidence that George was in possession of CDS with the intent to distribute when he was arrested. Additionally, George admitted to being unsuccessfully discharged from the substance abuse counseling; therefore, it was clearly established he violated the special condition of his parole.

George argues the Board's decision was arbitrary and capricious and did not follow the proper procedure. We disagree. An inmate's due process rights in a final parole revocation hearing were established in Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). Those rights include

(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a "neutral and detached" hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.

[Id. at 489.]

The Morrissey requirements for due process were satisfied in this case. The first and second requirements were satisfied when George was served with the Notice of Probable Cause Hearing, which stated the alleged violation. George was present at the hearing, testified on his own behalf, and declined to call any witnesses, thereby satisfying the third requirement. George was also given the opportunity to question the arresting officer who testified against him, satisfying the fourth requirement. The revocation hearing was conducted by a hearing officer who is a designated representative of the Board and is neutral and detached; therefore, the fifth requirement is satisfied. Lastly, the hearing officer issued a written opinion that identified the evidence relied upon and the reasons why George's parole was revoked, which satisfied the final Morrissey requirement. The Board followed proper procedure in deciding to revoke George's parole; therefore, the decision was not arbitrary or capricious.

Affirmed.