CARLOS MOORE VS. NEW JERSEY STATE PAROLE BOARD(NEW JERSEY STATE PAROLE BOARD) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-4822-15T1
CARLOS MOORE,
Appellant,
v.
NEW JERSEY STATE
PAROLE BOARD,
Respondent.
_______________________
Submitted June 8, 2017 – Decided July 11, 2017
Before Judges Lihotz and Whipple.
On appeal from New Jersey State Parole Board.
Carlos Moore, appellant pro se.
Christopher S. Porrino, Attorney General,
attorney for respondent (Lisa A. Puglisi,
Assistant Attorney General, of counsel;
Gregory R. Bueno, Deputy Attorney General, on
the brief).
PER CURIAM
Carlos Moore, an inmate incarcerated at Bayside State Prison,
appeals from the New Jersey State Parole Board's (Board) January
27, 2016 final agency decision revoking parole and establishing a
twelve-month future eligibility term (FET). We affirm.
Moore was serving an aggregate custodial term of twelve years
for carjacking, robbery, possession of a firearm, possession of a
prohibited weapon, resisting arrest, unlawful possession of a
weapon, possession of hollow-nosed bullets, possession of a weapon
by a convicted felon, burglary, and aggravated assault. Moore's
sentence provided for eighty-five percent parole ineligibility
pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, and a
five-year period of mandatory parole supervision. Moore was also
serving an additional five-year term, with a two-year, six-month
mandatory minimum term for aggravated assault. Moore was released
from custody on September 25, 2013, and began parole supervision.
The Board mandated Moore comply with various conditions while
on parole, including refraining from visiting establishments whose
primary business is selling alcohol and prohibiting his contact
with known members of the Bloods gang. On April 14, 2014, Moore
and his girlfriend, L.A., were involved in a domestic dispute,
resulting in the imposition of the additional special condition
Moore refrain from any contact with L.A.
Two incidents resulted in parole violations. On April 15,
2014, a parole officer found a Bloods gang member in Moore's home
during a home visit. On January 27, 2015, officers from the
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Atlantic City Police Department arrested Moore at Caesars Atlantic
City Hotel and Casino (Caesars) where L.A. told the officers she
and Moore had an argument and he punched her in the chin. The
next day, a parole warrant issued.
On February 2, 2015, the Board served Moore with a notice of
probable cause hearing, listing his violations: failure to refrain
from contact with L.A., failure to refrain from contact with known
Bloods gang members, and failure to refrain from establishments
in which sale of alcohol is the primary purpose. The probable
cause hearing was held on May 6, 2015, where Moore proceeded prose.
Moore admitting he assaulted L.A. at Caesars while there was a "no
contact" condition in place. The hearing officer sustained the
violation of no contact and refraining from establishments selling
alcohol. As to the violation of refraining from contact with
Bloods members, the hearing officer inferred Moore had knowledge
of his visitor's membership in the Bloods and sustained that
violation as well.
A two-member Board panel adopted the hearing officer's
recommendation on June 10, 2015. On June 23, 2015, Moore's parole
revocation hearing took place. The violation for failing to
refrain from contact with Bloods members was withdrawn. As for
the two remaining violations, Moore admitted he failed to refrain
from contacting L.A. and he was at a bar in Caesars, though he
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stated he was only "walking through" the bar. Based upon evidence
in the record, the hearing officer found by clear and convincing
evidence Moore committed the violations charged and recommended
the Board revoke Moore's mandatory supervision.
On July 1, 2015, after reviewing the hearing officer's
summary, a two-member Board Panel found Moore violated the special
conditions of his mandatory supervision and revoked Moore's
parole, imposing a twelve-month FET. Moore administratively
appealed and a full Board Panel affirmed the Panel's decision on
January 27, 2016.
Moore argues on appeal the Board did not follow proper
procedures and violated his due process rights. He also argues
the Board's findings were not supported by clear and convincing
evidence. We disagree.
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
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convincing evidence is "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 [factfinder]
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)).
Our review of the record finds support for the Board's
determination Moore's violations were established by clear and
convincing evidence. As a condition of parole, Moore was to
refrain from frequenting any establishment whose primary purpose
was to sell alcohol. Moore admitted to being in a casino bar,
however, he argues he was simply "walking through" and a casino's
primary purpose is entertainment, not selling alcohol. We find
this argument to be without merit. Moore acknowledged he was in
the casino bar around the time of the altercation with L.A.
As for the condition requiring Moore have no contact with
L.A., the record clearly establishes Moore continued to have
contact with L.A., as Moore admitted being with her on three
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separate occasions, including the trip to Atlantic City where he
assaulted her. By his own admission, Moore knew he was to refrain
from contacting L.A., yet continued to see her.
Moore argues the Board failed to consider the progress he has
made since being released from prison. Moore's progress reports
were included as evidence when the hearing officer and the Board
made its decision regarding the revocation of Moore's parole.
Moore's progress during his release does not change the
disposition; he clearly violated the special conditions of his
parole, which he himself admits.
Moore argues the Board did not follow the proper procedures.
Moore first argues the imposition of the special condition
regarding L.A. was done without due process, as Moore was never
charged in the domestic dispute that led to the imposition of the
special condition. The special condition was imposed to prevent
any further criminal behavior and Moore never appealed the
imposition of this special condition as imposed. We do not find
the special condition ordering him to refrain from contact with
L.A. violated Moore's due process rights.
As to Moore's general assertion he was denied procedural due
process we note, an inmate's due process rights in a final parole
revocation hearing were established in Morrissey v. Brewer, 408
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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 499.]
The Morrissey requirements were met in this case. The first
and second requirements were satisfied when Moore was served with
the notice of probable cause hearing, which stated the alleged
violation. Moore was present at the hearing and testified on his
own behalf, satisfying the third requirement. Moore was given the
opportunity to confront the adverse witness who testified against
him, satisfying the fourth requirement. The revocation hearing
was conducted by a designated representative of the Board and is
neutral and detached; satisfying the fifth requirement. The
hearing officer issued a written opinion identifying the evidence
relied upon and the reasons why Moore's parole was revoked,
satisfying the final Morrissey requirement. The Board followed
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proper procedure revoking Moore's parole; thus, the decision was
not arbitrary or capricious.
Lastly, Moore argues the Board did not conduct the parole
board hearing in a timely fashion. N.J.A.C. 10A:71-4.2(a) provides
the Board must decide appeals within ninety days of receiving
them. Here, the Board received Moore's appeal on October 14,
2015, and issued a final determination on January 27, 2016. The
Board did not comply with the ninety day requirement of N.J.A.C.
10A:71-4.2(a), however Moore suffered no prejudice by the fifteen-
day delay in the final decision.
Affirmed.
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