Basim Hobson 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NOT FOR PUBLICATION WITHOUT THE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-0681-12T3

BASIM HOBSON, APPROVED FOR PUBLICATION

Appellant, April 29, 2014

APPELLATE DIVISION

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

________________________________

Submitted April 2, 2014 – Decided April 29, 2014

Before Judges Grall, Nugent and Accurso.

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).

The opinion of the court was delivered by

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future eligibility term.1 Hobson's release was revoked for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

1

Defendant was sentenced to one five-year term of mandatory

parole supervision based on his guilty pleas to four counts of

first-degree robbery, N.J.S.A. 2C:15-1, charged separately in

99-01-306-I, 98-12-603-I, 99-02-155-Z and 99-05-276-A. His

sentences are concurrent with one another and, consequently, so

are his mandatory terms of NERA parole supervision. Cf. State

v. Friedman, 209 N.J. 102, 120-22 (2012) (holding that where

NERA sentences are consecutive, then the terms of NERA parole

supervision are also consecutive).

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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 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.

I

"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

3 A-0681-12T3

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 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

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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. 10A:71-

4.1(e)(1)-(3). Pursuant to Rule 2:2-3(a)(2), appeal to this

court is from the agency's final decision.

II

The revocation hearing in this case was conducted by a

hearing officer and a record of that hearing was made. N.J.S.A.

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30:4-123.63.2 Hobson's attorney cross-examined Hobson's

accusers, Parole Officers Dunphy and Bene. Hobson also

testified.3

The evidence can be summarized as follows. Hobson was

released to serve his five-year term of parole supervision at

the expiration of his sentence of imprisonment on August 8,

2009. Because of housing issues at the time of his release,

Hobson was placed in Logan Hall and transferred to Delaney Hall

for an alleged threat to a counselor.

After leaving Delaney Hall, Hobson had no difficulty on

parole until October 5, 2011. He completed a program at Perth

Amboy Community Resource Center on December 11, 2009, and found

employment before the end of that year. Officer Dunphy was

Hobson's parole officer, and by his account Hobson had been

employed for most of the period between December 2009 and the

2

In this case there was no probable cause hearing, because

Hobson had requested an adjournment of the probable cause

hearing and opted to proceed with the final hearing on the re-

scheduled date.

3

The transcript does not reflect that any of the witnesses took

an oath before testifying, and the Board's rules do not

expressly require that witnesses be sworn. But see Jamgochian

v. N.J. State Parole Bd., 394 N.J. Super. 517, 543 (App. Div.

2007) (discussing the importance of sworn testimony and cross-

examination in a hearing involving disputed allegations

supporting imposition of a curfew as an additional condition of

the person's community supervision), aff'd as modified, 196 N.J.

222 (2008). Hobson does not seek reversal on that ground.

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date of these violations. Hobson had not only maintained

employment but had also passed all drug and alcohol screens. In

addition, on Dunphy's numerous visits to Hobson's home, the

officer had never seen any alcohol, drugs, or drug

paraphernalia.

At about 8:00 p.m. on October 5, 2011, Dunphy and Bene were

patrolling in Plainfield. They saw Hobson walking down the

sidewalk wearing sunglasses and a long, dark-colored coat and

carrying a clear bottle that held a red liquid. They observed

Hobson stop and look into a business fronting the street.

As Dunphy customarily does when he sees a parolee on the

street, he stopped to talk to Hobson. He and Bene got out of

their car and called Hobson by name. Hobson acknowledged them,

but he continued to walk a bit before stopping.

Dunphy took the bottle from Hobson's hand, spilled out the

contents and discarded it. Neither officer knew what the red

liquid was, but to them, Hobson appeared to be "intoxicated."

Although the officers did not explain what made them think

Hobson was drunk, they both detected the odor of alcohol.

Consequently, Hobson was asked if he had been drinking. The

officers claimed Hobson told them he had been, and, for that

reason, Dunphy asked Hobson to sign a parole form entitled

"ADMISSION OF CDS/ALCOHOL USE." On that form, Hobson wrote: "I

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was with a friend who was drinking and he gave me 2 shots of

rum."

During Hobson's testimony at the hearing, he denied saying

he was drunk or had been drinking. He said he told the officers

the same thing that he wrote on the form — that a friend gave

him rum. He further testified that he did not drink the rum,

told his friend he did not want it and left it on his friend's

kitchen counter.

The officers also testified about the circumstances

supporting the charge of drug possession. They found the

substance they suspected to be marijuana after Hobson admitted

drinking and as they were walking with Hobson toward their car.

At that point, Hobson put his hand in his coat pocket. Dunphy

placed his hand on Hobson's wrist and directed Hobson to take

his hand from his pocket. As Hobson complied, Dunphy saw a

plastic bag that contained several smaller bags of a "green

vegetative substance," which Dunphy seized.

There was no evidence that the green vegetative substance

the officers claimed to find was marijuana. Neither the

substance nor a photograph of the evidence was produced at the

hearing.

Dunphy had filed a criminal complaint charging Hobson with

possession of less than fifty grams of marijuana and gave the

8 A-0681-12T3

evidence to the Plainfield police department. He did not,

however, get a receipt for the evidence. Neither officer knew

if the Plainfield police had the substance tested, and neither

testified to detecting an odor of marijuana. Bene, however,

testified that the substance was "packaged as CDS."

When the parole revocation hearing was held, Hobson had not

been prosecuted. Hobson claimed that the charge had been

downgraded and sent to the municipal court for disposition. In

addition, Hobson denied possessing any green vegetative

substance on October 5, 2011.

Hobson also testified in mitigation. He described his

activities, which at times included two jobs and caring for an

infirm relative. He also discussed his plans to attend school,

obtain a commercial driver's license and care for his son, who

was born in June 2011.

Considering the foregoing evidence and Hobson's presentence

reports prepared years ago, the hearing officer determined that

there was clear and convincing evidence supporting the

conclusion that Hobson violated the conditions as charged. With

respect to the charge of alcohol consumption in violation of the

special condition of Hobson's release, the hearing officer's

finding rested on the admission form Hobson signed. As proof of

the violation of the general condition pertinent to drug

9 A-0681-12T3

possession, the hearing officer relied upon Bene's testimony

that the vegetative substance was "packaged as marijuana" and

that the condition addressed "imitation CDS" as well as "CDS."

As previously noted, where revocation is based on violation

of a condition of release, the statute requires proof that the

parolee "has seriously or persistently violated the conditions

of his parole." N.J.S.A. 30:4-123.60. The hearing officer did

not provide any explanation for her conclusion that Hobson

qualified for revocation under that standard. She considered

Hobson's good record since his release from prison in August

2009 as warranting a reduction of the presumptive date of his

next parole eligibility.

The two-member Panel's decision does not address the

statutory standard either. It simply states that the Panel

"reviewed" the hearing officer's summary, "concur[red] with the

findings of fact," and "adopted the recommendation" of the

hearing officer on "disposition."

The Board also failed to explain how the evidence in this

case established that Hobson had "seriously or persistently

violated the conditions of his parole." N.J.S.A. 30:4-123.60.

The Board summarized the objections Hobson's attorney raised on

the administrative appeal, noted that the attorney had raised

the same arguments before the Panel and, despite the Panel's

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cursory written decision, the Board concluded that the Panel

considered those objections and the entire record in making its

decision.

Without further explanation, the full Board stated its

conclusions:

The full Board finds that the Panel reviewed

and considered the full circumstances

surrounding your client's violations of

mandatory parole supervision as well as each

of the mitigating factors mentioned in the

hearing officer's summary. The full Board

finds no evidence to support your claim that

the Panel failed to consider material facts

or failed to demonstrate that revocation is

desirable. The full Board concurs with the

Panel's determination that there is clear

and convincing evidence that your client

seriously violated parole conditions and

that revocation is desirable. Therefore,

the full Board finds your contentions to be

without merit.

. . . .

Finally, the full Board finds that, other

than your own interpretation of information

that is already part of the record, you have

not identified any written Board policy or

procedure to which the Panel's decision is

contrary. Therefore, the Board finds your

contention to be without merit.

. . . Additionally, in assessing your

client's case, the full Board concurs with

the determination of the . . . Panel that

clear and convincing evidence exists that

your client has seriously violated the

conditions of parole and that revocation is

desirable. . . .

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III

The record does not contain clear and convincing evidence

of Hobson's violation of general condition number 9. That

standard of proof requires evidence that persuades the fact

finder "that the truth of the contention is 'highly probable.'"

In re Perskie, 207 N.J. 275, 290 (2011) (quoting 2 McCormick on

Evidence § 340, at 487 (Broun ed., 6th ed. 2006)). Stated

differently, the evidence must be sufficient to "'produce in the

mind of the trier of fact a firm belief or conviction as to the

truth of the allegations sought to be established.'" In re

Purrazzella, 134 N.J. 228, 240 (1993) (quoting Aiello v. Knoll

Golf Club, 64 N.J. Super. 156, 162 (App. Div. 1960)). Even

"evidence that is uncontroverted may nonetheless fail to meet

the elevated clear and convincing evidence standard." In re

Perskie, supra, 207 N.J. at 290.

The Board reminds us of the deference a reviewing court

owes to an agency's factual findings — a standard that is well-

established and must be followed. The question for a court is

"'whether the findings made could reasonably have been reached

on sufficient credible evidence present in the record,'

considering 'the proofs as a whole,' with due regard to the

opportunity of the one who heard the witnesses to judge of their

credibility." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)

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(quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Implicit

in that standard is a court's obligation to reverse where the

evidence, viewed in the light most favorable to the agency's

decision, is inadequate to meet the standard of proof.

Hobson was charged with failing 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."

Even if we were to assume that the officers' testimony, without

any other evidential support, was adequate to establish

defendant's possession of several small bags of a green

vegetative substance by clear and convincing evidence, there was

absolutely no evidence supporting a finding that the substance

was marijuana or some other controlled dangerous substance.

Accordingly, Hobson's violation of this condition based on

possession of marijuana cannot be sustained.

The evidence was also inadequate to permit a reasonable

finder of fact to conclude that Hobson possessed an imitation

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controlled dangerous substance as defined in N.J.S.A. 2C:35-11.4

N.J.S.A. 2C:35-11 defines the crime of distributing or

possessing "imitation controlled dangerous substances." The

term is not defined and its meaning must be derived from the

text of the definition of the crime. In pertinent part,

N.J.S.A. 2C:35-11 provides:

a. It is unlawful for any person to

distribute or to possess or have under his

control with intent to distribute any

substance which is not a controlled

dangerous substance or controlled substance

analog:

(1) Upon the express or implied

representation to the recipient that the

substance is a controlled dangerous

substance or controlled substance analog; or

(2) Upon the express or implied

representation to the recipient that the

substance is of such nature, appearance or

effect that the recipient will be able to

distribute or use the substance as a

controlled dangerous substance or controlled

substance analog; or

(3) Under circumstances which would lead a

reasonable person to believe that the

substance is a controlled dangerous

substance or controlled substance analog.

Any of the following shall constitute prima

facie evidence of such circumstances:

4

The condition also refers to the definitions in N.J.S.A.

2C:35-2, but the statute does not define the term "imitation

controlled dangerous substance."

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(a) The substance was packaged in a manner

normally used for the unlawful distribution

of controlled dangerous substances or

controlled substance analogs.

(b) The distribution or attempted

distribution of the substance was

accompanied by an exchange of or demand for

money or other thing as consideration for

the substance, and the value of the

consideration exceeded the reasonable value

of the substance.

(c) The physical appearance of the substance

is substantially the same as that of a

specific controlled dangerous substance or

controlled substance analog.

. . . .

Bene provided the only evidence tending to establish that

the green vegetative substance Hobson possessed was an

"imitation controlled dangerous substance." She said, "[i]t was

a green vegetative substance that was packaged as CDS." Her

testimony, however, included no comparison of the packaging she

observed in this case and the packaging of CDS. Without such a

comparison, that testimony was not even adequate to prove by a

preponderance of the evidence that the substance Hobson had "was

packaged in a manner normally used for the unlawful distribution

of controlled dangerous substances or controlled substance

analogs."

15 A-0681-12T3

For the foregoing reasons, the Board's finding that Hobson

violated general condition number 9 is reversed and the charge

is vacated.

IV

In contrast, there was adequate evidence to support a

finding, by clear and convincing evidence, that Hobson consumed

alcohol. Giving deference to the hearing officer's ability to

assess credibility, the officers' testimony about detecting the

odor of alcohol and Hobson's oral admission, coupled with the

admission form Hobson signed, was adequate to prove that

violation by clear and convincing evidence.

That does not end the inquiry, however. As previously

noted, the Board may revoke the release status of a parolee

serving a term of mandatory parole supervision required by NERA

only if the Board finds, by clear and convincing evidence, that

the parolee "has seriously or persistently violated the

conditions of his parole." N.J.S.A. 30:4-123.60. Obviously,

our reversal of the Board's finding on general condition number

9 changes the analysis of the question as to whether the

standard for revocation of parole is met.

Ordinarily, we would remand so that the Board, which is

charged with the responsibility, could consider whether the

violation of the special condition requiring Hobson to refrain

16 A-0681-12T3

from the consumption of alcohol meets the statutory standard for

revocation of release status. This record, however, does not

permit that determination. It establishes nothing other than

the fact that on one occasion Hobson drank two shots of rum.

Given Hobson's undisputedly consistent record of refraining from

the use of alcohol during the two-year period following his

release and maintaining employment, he cannot be found to have

"seriously" violated a condition of his parole under the plain

meaning of that word. Accordingly, we direct the Board to

promptly schedule Hobson's release subject to such conditions as

it may deem appropriate.

Although it is not necessary to our decision, in the

interest of avoiding repetition, it is appropriate to advise the

Board that even if the evidence were adequate to support this

revocation, we would have remanded for supplementation of the

Board's decision. Both the Panel's decision and the Board's

decision are inadequate in that they offer no explanation for

the determination that Hobson "seriously violated" conditions of

his release status.

This court defers to an agency decision if it is supported

by the record and not "arbitrary, capricious or unreasonable."

In re Taylor, 158 N.J. 644, 657 (1999) (internal citation

omitted). "[E]xercise of such deference is premised on our

17 A-0681-12T3

confidence that there has been a careful consideration of the

facts in issue and appropriate findings addressing the critical

issues in dispute." Bailey v. Bd. of Review, 339 N.J. Super.

29, 33 (App. Div. 2001). "[I]t is a fundamental of fair play

that an administrative judgment express a reasoned conclusion.

A conclusion requires evidence to support it and findings of

appropriate definiteness to express it." N.J. Bell Tel. Co. v.

Communications Workers of America, 5 N.J. 354, 375 (1950).

The Legislature did not grant the Board unbridled

discretion to revoke the release status of a person subject to a

term of NERA parole supervision. Absent conviction of a crime,

the Board has that authority only if the parolee "has seriously

or persistently violated the conditions of his parole."

N.J.S.A. 30:4-123.60. A decision of a Panel or Board revoking

parole without an articulation of the basis for revocation under

the statutory standard has an appearance of unfairness and

caprice that not only invites but requires careful scrutiny by a

reviewing court. For the same reason, the Panel and Board must

explain its reasons for selecting a release date or a future

eligibility date as well. Similarly, in a case where conditions

of release are altered or the sanction of lost commutation time

is ordered, those determinations should be explained as well.

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Reversed and remanded for further proceedings in conformity

with this opinion.

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