The opinion
NOT FOR PUBLICATION WITHOUT THE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-4037-19
TYREESE EVANS, a/k/a
TAJ EVANS,
Appellant,
v.
NEW JERSEY STATE
PAROLE BOARD,
Respondent.
_____________________
Submitted April 13, 2021 – Decided May 5, 2021
Before Judges Yannotti and Natali.
On appeal from the New Jersey State Parole Board.
Tyreese Evans, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Sookie Bae-Park, Assistant Attorney
General, of counsel; Suzanne M. Davies, Deputy
Attorney General, on the brief).
PER CURIAM
Tyrese Evans appeals from a May 27, 2020 New Jersey State Parole Board
(Board) final agency decision revoking his mandatory supervision status and
establishing a twelve-month parole eligibility term. We affirm.
Evans pled guilty to conspiracy to commit robbery, aggravated
manslaughter, and unlawful possession of a weapon. He was sentenced to an
aggregate ten-year prison term with an eighty-five percent period of parole
ineligibility and a five-year period of mandatory parole supervision under the
No Early Release Act, N.J.S.A. 2C:43-7.2. One of the conditions of Evans'
parole barred him "from the purchase, use, possession, distribution, or
administration of any narcotic drug, controlled dangerous substance [(CDS)], or
[CDS] analog" or "imitation [CDS] or imitation [CDS] analog."
After completing the custodial portion of his sentence, Evans was arrested
while on parole by Officer Shawn Dunphy for aggravated assault. During a
search incident to his arrest, Officer Dunphy seized a plastic bag located in
Evans' pocket containing "twenty pills of suspected [Ecstasy/MDMA 1], with
varying colors and stamp[ed] images on them."
1
MDMA, or methylenedioxymethamphetamine, is a CDS commonly known by
the street names Ecstasy or Molly.
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2
As a result of his arrest, the Board commenced parole revocation
proceedings against Evans pursuant to N.J.S.A. 30:4-123.62. He was also
charged with possession of a CDS contrary to N.J.S.A. 2C:35-10(a)(1). Evans
was notified of the parole revocation hearing, declined his right to counsel, and
proceeded without legal representation.
At the hearing, Officer Dunphy conceded that he had not obtained
laboratory results to confirm that the pills were illegal drugs but stated "based
on the[ir] appearance" he believed they were either actual or imitation CDS.
Officer Dunphy recommended the Board revoke Evans' parole and explained:
[Evans] . . . seriously violated the conditions of his
mandatory supervision, specifically, [Evans] has been
charged with committing a new aggravated assault and
was found to be in possession of illegal narcotics.
[Evans'] behavior makes him a threat to the community
and unsuitable for community supervision.
Evans disputed that the pills were illegal. He testified that he does not use
drugs, and stated he never provided "dirty urine" during his two years of
mandatory parole supervision. Finally, he appeared to disclaim ownership of
the pills as he stated he changed out of his work clothes and put on his brother's
pants prior to his arrest.
The hearing officer concluded that there was clear and convincing
evidence that Evans was in possession of illegal narcotics in violation of his
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3
parole. He found the testimony of Officer Dunphy to be detailed, credible,
reliable, and supported by his training and experience. Conversely, the hearing
officer determined that Evans' testimony lacked overall credibility and
reliability. On July 10, 2019, a Board panel affirmed the hearing officer's
decision.
Evans filed an administrative appeal. He argued that the panel's decision
should be reversed because its finding that he possessed an illegal substance was
unsupported by confirmatory laboratory results. The panel agreed, vacated the
July 10, 2019 decision, and scheduled a de novo probable cause hearing . It did
not appear to address that condition of Evans' parole which prohibited him from
possessing imitation drugs.
Evans retained counsel, waived the probable cause hearing, and decided
to proceed directly to a second parole revocation hearing. At that hearing,
Officer Dunphy testified again and explained that a condition of Evans' parole
prohibited him from possessing not only actual CDS, but imitation or analog
drugs as well.
Officer Dunphy conceded that the seized pills were not tested. He also
did not introduce the pills at the hearing or provide photographs of the seized
contraband. Instead, Officer Dunphy stated that based on his training and
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experience, "the substance found in [Evans'] pocket had the appearance of
Ecstasy/MDMA pills."
The hearing officer recommended revocation of Evans' mandatory
supervision and the imposition of a twelve-month eligibility term. He noted that
a condition of Evans' parole prohibited him from possessing not only actual
CDS, but analog or imitation illegal drugs. The hearing officer found Officer
Dunphy's testimony credible and reliable and concluded based on his testimony
"that clear and convincing evidence . . . exist[ed] to believe that [Evans] was in
possession of imitation CDS," and therefore violated a condition of his parole.
The hearing officer also explained that although Evans was "working,
attending school, maintaining a stable residence, and testing negative fo r
substances," his "positive behavior on parole, [did] not negate the commission
of the violation." Finally, the hearing officer found that Evans' violation was
serious, and revocation of his parole was a necessary consequence of his actions.
On February 19, 2020, a Board panel accepted the hearing officer's factual
findings and recommendations.
On May 27, 2020, the Board issued a final notice of agency decision
affirming the panel's February 19, 2020 decision. In a written decision, the
Board determined that the panel "reviewed and considered all relevant facts
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5
pertaining to [Evans'] violation of the condition of [his] mandatory supervision "
and concluded that "clear and convincing evidence exist[ed] that [Evans had]
seriously violated the condition of mandatory supervision and revocation of
[his] mandatory supervision status [was] desirable."
This appeal followed in which Evans raises the following points for our
consideration:
I. THE ALLEGATION LODGED AGAINST
APPELLANT SHOULD NOT HAVE BEEN
SUSTAINED BY THE PAROLE BOARD DUE TO
THE DISQUALIFICATION OF THE PAROLE
OFFICER TO DELINEATE AND
CORROBORATE HIS TESTIMONY.
II. THE AGENCY'S FAILURE TO ADDRESS THE
MERITS OF APPELLANT'S APPEAL RENDERS
THE DECISION TO REVOKE PAROLE
ARBITRARY, CAPRICIOUS AND A
VIOLATION OF APPELLANT'S
CONSTITUTIONAL RIGHT TO DUE PROCESS
OF LAW AS GUARANTEED BY THE U.S.
CONSTITUTION['S] [FOURTEENTH]
AMENDMENT . . . [AND] N.J. CONST. ART. I,
PARA. 8.
We have carefully considered Evans' arguments in light of the record and
controlling legal principles. We affirm, substantially for the reasons expressed
in the Board's written decision, which is supported by sufficient credible
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evidence in the record as a whole. R. 2:11-3(e)(1)(D). We add the following
comments.
Our review of a Board's decision is limited. Hare v. N.J. State Parole Bd.,
368 N.J. Super. 175, 179 (App. Div. 2004). We "must determine whether the
factual finding could reasonably have been reached on sufficient credible
evidence in the whole record." Ibid. (citing Trantino v. N.J. State Parole Bd.,
166 N.J. 113, 172 (2001)). The appellant has "[t]he burden of showing that an
action was arbitrary, unreasonable or capricious." McGowan v. N.J. State Parole
Bd., 347 N.J. Super. 544, 563 (App. Div. 2002).
Applying these well-established principles, we discern no basis to
overturn the Board's final decision. The Board considered the relevant facts and
submissions in revoking Evans' mandatory supervision status and establishing a
twelve-month parole eligibility term. The Board's determination is amply
supported by the record and consistent with controlling law. Its decision was
not arbitrary, capricious, or unreasonable.
Primarily relying on Hobson v. N.J. State Parole Board., 435 N.J. Super.
377 (App. Div. 2014), Evans argues that the Board's decision was arbitrary and
capricious because Officer Dunphy failed to corroborate his testimony with
forensic testing or other evidence to establish that the seized pills were actual or
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imitation CDS. He further contends that the Board's decision violated his due
process rights. We are not persuaded by either of these arguments.
"Drawing on the diverse backgrounds of its members, the Parole Board
makes 'highly predictive and individualized discretionary appraisals.'" Acoli v.
N.J. State Parole Bd., 224 N.J. 213, 222 (quoting Beckworth v. N.J. State Parole
Bd., 62 N.J. 348, 359 (1973)). The Board may revoke parole and return a parolee
to custody when the parolee "seriously or persistently violate[s] the conditions
of . . . parole." N.J.S.A. 30:4-123.60(b). We have recognized that "[t]he
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,
435 N.J. Super. at 382.
By any measure, Evans' parole violation was serious. He failed to abide
by an important parole condition prohibiting his possession of analog or
imitation drugs. The evidence was clear and convincing that he was non-
compliant with that condition.
We find Evans' reliance on Hobson misplaced as that case is factually
distinguishable. In Hobson, we concluded that the Board failed to prove an
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imitation CDS violation by clear and convincing evidence. After analyzing the
statutory text of the imitation CDS offense defined in N.J.S.A. 2C:35-11, we
examined the testimony presented to determine whether it supported a finding
of a parole violation for possession of an imitation CDS. 435 N.J. Super. at 389.
We explained:
[The parole officer involved in the stop] provided the
only evidence tending to establish that the green
vegetative substance [the parolee] possessed was an
"imitation [CDS]." [The officer] said, "[i]t was a green
vegetative substance that was packaged as CDS." [The
officer's] 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 [the
parolee] had "was packaged in a manner normally used
for the unlawful distribution of [CDS] or [CDS]
analogs."
[Ibid.]
We further noted, "[t]here was no evidence that the green vegetative substance
the officers claimed to find was marijuana" and that "[n]either the substance nor
a photograph of the evidence was produced at the hearing." Id. at 385.
We acknowledge that the evidence presented in the case before us suffers
from some of the same infirmities as in Hobson. For example, Officer Dunphy
failed to present proof that the suspected CDS were forensically tested. Also,
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as in Hobson, the parole officer did not introduce into evidence photographs of
the seized contraband.
Significantly, however, unlike the testimony in Hobson, Officer Dunphy
relied on his training and experience and compared the seized pills to the
appearance of illegal drugs. It was reasonable for the Board to rely on this
testimony, which it deemed credible, when determining if Evans possessed an
imitation CDS in violation of his parole. Indeed, under N.J.S.A. 2C:35-11(a)(3),
it is a violation of the imitation CDS statute if "circumstances exist which would
lead a reasonable person" to believe the substance is an illegal drug. "Prima
facie evidence of such circumstances" exists when the facts establish that "[t]he
physical appearance of the substance is substantially the same as that of a
specific [CDS] or [CDS] analog." N.J.S.A. 2C:35-11(a)(3)(c).
We also find without merit Evans' claims that Officer Dunphy's failure to
test the pills rendered the Board's decision arbitrary and capricious, and that its
decision violated his procedural due process rights. First, the Board's actions
comported with all procedural due process requirements. Evans was provided
notice of both revocation hearings, and the right to counsel. An impartial
hearing officer considered the parties' evidence, the applicable law, and issued
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a thorough written decision, which was reviewed by a separate panel and then
the Board.
Second, throughout the administrative proceedings, the hearing officer,
panel, and the Board thoroughly considered, and ultimately rejected, all of
Evans' factual and legal arguments. In view of our deferential standard of
review, especially given the hearing officer's opportunity to assess the live
testimony of Officer Dunphy, we accept the Board's factual findings and affirm
the administrative conviction.
To the extent we have not addressed any of Evans' remaining arguments
it is because we conclude they are without sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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