JOHN PECORENO 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NOT FOR PUBLICATION WITHOUT THE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

JOHN PECORENO,

Appellant,

v.

NEW JERSEY STATE

PAROLE BOARD,

Respondent.

_______________________________

April 24, 2014

Before Judges Lihotz and Maven.

On appeal from the New Jersey State Parole Board.

John Pecoreno, appellant pro se.

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).

PER CURIAM

Appellant John Pecoreno appeals from an October 26, 2011 decision of the New Jersey State Parole Board (the Board) denying his challenge to revoke his mandatory parole supervision status and established a twelve-month future parole eligibility term (FET). See N.J.A.C. 10A:71-3.21(a). In a single point, appellant argues:

PAROLE WAS REVOKED DUE TO CIRCUMSTANCES BEYOND THE APPELLANT'S CONTROL.

We reject this assertion and affirm.

These facts are found in the agency record. Appellant is confined at Northern State Prison after violating parole. Following the grand jury's return of two indictments against appellant, he pled guilty to one count in each indictment and was convicted of conspiracy to commit burglary and aggravated sexual assault of a twelve-year-old child. Appellant was sentenced to an aggregate seven-year term and was subject to parole supervision for life.

Appellant completed his maximum sentence and was released from custody on September 5, 2009. The provisions of his parole supervision for life included: A9 (requiring a parolee to refrain from the use and possession of any control dangerous substances) and B2 (requiring a parolee to participate in and successfully complete an appropriate community or residential counseling or treatment program as directed by the assigned parole officer).

Following a parole revocation hearing, appellant was found guilty of using cocaine in violation of a specified condition of his parole release. Parole was continued; however, condition A9 was amended to provide an additional special condition. Specifically, the amended parole certificate included the requirement that appellant complete the Logan Hall rehabilitation program, a community-based residential substance abuse treatment program. Appellant reviewed and accepted the amended conditions on November 22, 2010.

Appellant was transferred to Logan Hall. Not long after his arrival, appellant stated "he felt like cutting himself," resulting in his immediate transfer to the medical unit. As a result of this incident, appellant did not participate in intake and was unable to complete the designated Logan Hall rehabilitation program. Appellant was discharged from Logan Hall.

A parole supervisor served appellant with a notice scheduling a hearing to determine whether he violated parole. The notice stated the basis for the hearing was his failure to complete the specified substance abuse rehabilitation program at Logan Hall.

During the February 17, 2011 proceeding, conducted by a hearing officer (HO), appellant waived his right to counsel and elected to waive a probable cause hearing. Consequently, the proceeding was converted to a final violation hearing.

The assigned parole officer testified appellant had been found guilty of violating parole because he used cocaine and possessed valium and suboxone. Despite this violation, parole was continued, specifically conditioned upon appellant's completion of the Logan Hall program. Subsequently, a parole warrant issued because appellant was discharged from Logan Hall due to medical or mental health reasons.

The HO did not view the failure to complete the Logan Hall program in isolation, but considered it in the context of appellant's parole violation for drug possession and use. The HO found these violations serious, in light of the fact appellant had abused substances during each of his criminal offenses, making rehabilitation imperative. Because appellant was found inappropriate for the rehabilitation program, the HO concluded he had not addressed his substance dependence. Accordingly, the HO recommended revocation of parole.

A two-member Board Panel reviewed the matter and concurred with the HO's findings that appellant violated the special conditions of parole, specifically the special provision requiring completion of the Logan Hall program. Parole was revoked and a twelve-month future eligibility term was imposed.

Appellant filed an appeal challenging the Board Panel's determination. After consideration of his case, the full Board affirmed. This appeal ensued.

Our scope of review is very limited. Administrative decisions of the Board are "grounded in strong public policy concerns and practical realities." Trantino v. N.J. State Parole Bd., 166 N.J. 113, 200 (2001) (Trantino V). "The decision of a parole board involves 'discretionary assessment[s] of a multiplicity of imponderables . . . .'" Id. at 201 (alteration in original) (quoting Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 10, 99 S. Ct. 2100, 2105, 60 L. Ed. 2d 668, 677 (1979)). The Board has broad, but not unlimited, discretionary power. Monks v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971).

In our review, we do not disturb the factual findings of the Board if they "could reasonably have been reached on sufficient credible evidence in the record." Trantino V, supra, 166 N.J. at 199 (citing Trantino v. N.J. State Parole Bd., 154 N.J. 19, 24 (1998) (Trantino IV)). See also McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002) (noting "[a]dministrative actions, such as parole decisions, must be upheld where the findings could reasonably have been reached on the credible evidence in the record"). Further, we remain mindful that "[t]o a greater degree than is the case with other administrative agencies, the Parole Board's decision-making function involves individualized discretionary appraisals." Trantino V, supra, 166 N.J. at 201 (citation omitted). We will not second-guess the Board's application of its considerable expertise unless we find the decision was arbitrary and capricious. Ibid. The burden to prove the Board acted unreasonably rests with appellant. Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div. 1993), certif. denied, 135 N.J. 469 (1994).

Under 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 . . . ." When determining to revoke parole, the Board must support its decision by clear and convincing evidence. N.J.A.C. 10A:71-7.12(c)(1); N.J.A.C. 10A:71-7.15(c).

Appellant argues his inability to complete the Logan House program was beyond his control. He asserts his mental health issues precluded participation in Logan House. Consequently, he argues the determination he violated parole was arbitrary and capricious.

We reject this contention because the record establishes appellant had seriously violated the conditions of his parole by using and possessing several illicit narcotics. Although revocation could have issued at that time, parole was continued, if and only if appellant completed the residential treatment and rehabilitation program at Logan House. Appellant understood this condition, which he accepted.

We also note the record does not support appellant's contention he was ineligible for the Logan House program upon presentation. On the contrary, when released on parole, appellant demonstrated his mental health was controlled by medication and no manifestations of illness were present. The record does not state whether appellant deviated from his medication regime, as he alleges, but clearly and convincingly proves he violated parole by possessing and using illicit substances. The additional proof that appellant could not complete rehabilitation, an explicit condition of continuing parole release, clearly and convincingly supports parole revocation. The HO determined appellant must return to custody as his unabated substance abuse posed "a danger to the public safety." N.J.A.C. 10A:71-7.15(c)(1).

Contrary to appellant's contention, parole was not revoked because of appellant's mental health lapse. Rather, his persistent drug use and illicit drug dependence were significant violations which posed significant dangers to the public were parole release to continue. We conclude the decision to revoke appellant's parole and direct he serve a twelve-month FET was supported by clear and convincing evidence in the record and was neither arbitrary nor capricious.

We have reviewed appellant's additional arguments set forth in his reply brief. Based upon the record and applicable law, we conclude they are without merit. R. 2:11-3(e)(2).

Affirmed.