QUIANDEL ANDERSON 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NOT FOR PUBLICATION WITHOUT THE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-0

QUIANDEL ANDERSON,

a/k/a QUINNDEL E. ANDERSON,

a/k/a QUENDELL E. ANDERSON,

a/k/a QUINDEL ANDERSON,

a/k/a QUINNDEL ANDERSON,

a/k/a ISAIAH KNIGHT,

a/k/a ANTHONY ANDERSON,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

____________________________________

July 27, 2016

Submitted May 24, 2016 Decided

Before Judges Hoffman and Leone.

On appeal from the New Jersey State Parole Board.

Caryn M. Rubinstein, attorney for appellant.

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

PER CURIAM

Quiandel Anderson appeals from the decision of the New Jersey State Parole Board (Board) affirming the revocation of his parole and the imposition of a twelve-month future eligibility term (FET). We affirm.

I.

Anderson was found guilty of three counts of carjacking, two counts of conspiracy, and three weapons offenses. On February 2, 2007, he was sentenced to an eight-year prison term and five years of mandatory parole supervision upon release pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.

On May 13, 2013, Anderson was released on mandatory parole supervision. While on parole, Anderson was required to abide by special conditions, including: "be evaluated by a mental health program designated by the District Parole Office and, upon completion of the evaluation . . . . comply with the recommended course of counseling/therapy" and "enroll and participate in an appropriate substance abuse counseling program until the District Parole Office approves discharge from this condition."

After his release, Anderson failed to comply with these conditions. He also violated other conditions of his parole by having contact with gang members and changing his residence without approvals. On August 21, 2013, he was placed in a Residential Community Release Program (RCRP) designed to transition offenders into the community. During intake, Anderson admitted to using both codeine cough syrup without a prescription and synthetic cannabis, both of which also violated the conditions of his parole.

On November 5, 2013, Anderson tested positive for synthetic cannabis use, but he denied using it. On November 18, 2013, Anderson was released from the RCRP for his alleged drug use.

On January 3, 2014, Anderson's parole officer (PO) reminded him about the special conditions of his parole that required him to get a mental health evaluation and outpatient drug counseling, because he had not yet obtained either. Anderson's PO referred him to the Jersey City Community Resource Center (CRC), a program which provides employment and substance abuse counseling services to offenders reentering the community.

On January 7, 2014, the Board added completion of the CRC program to the list of special parole conditions. Anderson attended nine days at the CRC but missed thirty-four days, resulting in his discharge from the program.

On February 23, 2014, Anderson was served with a notice of a parole revocation hearing, alleging he violated the following special conditions: (1) failure to successfully complete the CRC program; (2) failure to participate in an appropriate substance abuse counseling program; and (3) failure to participate in a mental health evaluation and, upon completion of the evaluation, comply with the recommended course of counseling/therapy.

At his final parole revocation hearing on April 8, 2014, the hearing officer found by clear and convincing evidence that Anderson violated the three conditions of his parole, and recommended a twelve-month FET. On April 30, 2014, a two-member Panel affirmed the recommendation. On September 24, 2014, the full Board affirmed. Anderson appeals, arguing

POINT I - THE ALLEGED VIOLATIONS OF THE CONDITIONS OF APPELLANTS' RELEASE DID NOT RISE TO THE LEVEL OF SERIOUSNESS OR PERSISTENCE REQUIRED TO REVOKE HIS PAROLE UNDER N.J.A.C. 10A:71.7.

POINT II - THE PAROLE BOARD FAILED TO DOCUMENT BY CLEAR AND CONVINCING EVIDENCE THAT APPELLANT SERIOUSLY OR PERSISTENTLY VIOLATED THE CONDITIONS OF HIS PAROLE.

II.

Our "limited scope of review" of decisions by the Board is "grounded in strong public policy concerns and practical realities." Trantino v. N.J. State Parole Bd., 166 N.J. 113, 200, modified, 167 N.J. 619 (2001). "[T]he Parole Board makes 'highly predictive and individualized discretionary appraisals.'" Acoli v. N.J. State Parole Bd., 224 N.J. 213, 222 (2016) (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)). We may overturn decisions of the Board only if "they are arbitrary, capricious or unreasonable or are not 'supported by substantial credible evidence in the record as a whole.'" Trantino, supra, 166 N.J. at 191-92 (emphasis and citation omitted); see also Acoli, supra, 224 N.J. at 222-23. We must hew to that standard of review.

III.

Anderson asserts that his alleged violations do not rise to the level of seriousness or persistence required to revoke parole. Pursuant to N.J.S.A. 30:4-123.60(b), "[a]ny parolee who has seriously or persistently violated the conditions of his parole, may have his parole revoked and may be returned to custody[.]" Moreover, N.J.A.C. 10A:71-7.12(c) provides in part

If the parolee has not been convicted of a crime committed while on parole . . . 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 Legislature [has] not further define[d] 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." Hobson v. N.J. State Parole Bd., 435 N.J. Super. 377, 382 (App. Div. 2014). Thus, the determination of whether a parolee's violations are serious or persistent, and whether revocation of parole is desirable, necessarily involves "individualized discretionary appraisals." Acoli, supra, 224 N.J. at 222.

Here, the evidence before the Board established that Anderson's violations of the special conditions of his parole were serious and persistent.

Anderson admitted that he failed to complete the CRC program. Nonetheless, he argues that the location in Jersey City was too far away from his residence, that his absence was because his work schedule conflicted with the program, and that working and finding work took priority over attending the CRC. However, these arguments are inconsistent with the record. First, on January 7, 2014, Anderson told his PO that he would be able to report to the CRC in Jersey City even though he would be traveling from East Orange. Although the record is devoid of information relating to why Anderson was placed in the Jersey City CRC as opposed to a location closer to his residence, it also lacks any complaints or communications at all by Anderson to his PO regarding the hardship based on the commute. Second, Anderson's CRC program had been specially modified to accommodate Anderson's work schedule, but Anderson still failed to attend. Anderson failed to provide verification of a work conflict to his PO, despite being asked for verification on several occasions between November 18, 2013 and January 3, 2014. Further, Anderson provided verification of working only thirty-three hours in February 2014. Anderson failed to provide verification of working on all thirty-four days that he missed. Third, working did not take priority over attending the CRC absent an official waiver of attendance.

Anderson admitted he failed to attend the required substance counseling program. Further, Anderson tested positive for illicit substances on August 21, 2013, and November 5, 2013.1 On November 18, 2013, Anderson was referred to outpatient drug counseling and to a location to obtain his mental health evaluation. Anderson failed to comply with either condition. Indeed, Anderson was given the opportunity to cure his violations on January 3, 2014, when his PO reminded him to comply with both conditions, sent Anderson to the CRC to have the outpatient counseling completed there, and referred him to multiple locations where he could have the mental health evaluation completed. Despite these opportunities, Anderson still failed to procure both the outpatient counseling and the mental health evaluation.

Anderson does not dispute that he failed to have a mental health evaluation completed. He claims he went to East Orange General Hospital to undergo the evaluation on January 6, 2014, but he was unable to have the evaluation performed because he lacked the necessary paperwork. However, Anderson's PO provided Anderson with the paperwork to give to the doctor on two separate occasions. Thus, it was Anderson's own failure to bring the paperwork that kept him undergoing the evaluation.

Anderson argues that the violations were not serious or persistent because he made a good faith attempt to comply with the conditions of his parole. However, for many months he failed to get a mental health evaluation or enroll in a substance abuse counseling program, and he failed to attend 79% of his CRC sessions.

Based on Anderson's serious violations of the special conditions of his parole, the Board concurred with the findings of the hearing officer and Board panel that revocation was desirable. The Board's decision to revoke parole was not "arbitrary" or "capricious." Trantino, supra, 166 N.J. at 191. Rather, the evidence of Anderson's violations supports the Board's findings. Moreover, we "give great weight to the expertise of the Board in dealing with parole decisions." State v. Lavelle, 54 N.J. 315, 325 (1969). Accordingly, we will not disturb the Board's revocation of Anderson's parole or the imposition of a twelve-month FET.

Affirmed.

1 Anderson's illicit substance use was not among the reasons listed as cause for his parole revocation, but it is relevant to the inquiry of whether Anderson's violation of the outpatient substance counseling condition was serious and persistent.