DIVINE ALLAH VS. NEW JERSEY STATE PAROLE BOARD(NEW JERSEY STATE PAROLE BOARD) ( 2017 )


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  •                         NOT FOR PUBLICATION WITHOUT THE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-3861-15T3
    DIVINE ALLAH,
    Appellant,
    v.
    NEW JERSEY STATE
    PAROLE BOARD,
    Respondent.
    ________________________________
    Submitted August 8, 2017 – Decided August 24, 2017
    Before Judges Hoffman and Currier.
    On appeal from the New Jersey State Parole
    Board.
    Divine Allah, appellant pro se.
    Christopher S. Porrino, 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    Divine    Allah    appeals    the   final    administrative
    action of the New Jersey State Parole Board (Board), revoking his
    parole and setting a fourteen-month future eligibility term (FET).
    We affirm.
    In 2005 appellant was sentenced to a twelve-year custodial
    term of imprisonment and to a five-year period of mandatory parole
    supervision following his release from custody.                      When appellant
    began his term of parole on March 3, 2014, he agreed that he would
    refrain   from     the    purchase,       use,    possession,      distribution     or
    administration of any narcotic drug and that he would successfully
    complete a drug treatment program.
    Within      days    after      his     release      to    parole   supervision,
    appellant began to use marijuana. He was placed into an in-patient
    drug treatment program; however after he tested positive for
    marijuana       twice    and   committed         several      infractions,   he    was
    discharged.
    Appellant received a subsequent notice of probable cause
    hearing at which a determination would be made whether he had
    committed a violation of parole.                The notice advised appellant of
    his panoply of rights and the parole conditions he was charged
    with violating.
    At   the     hearing      in   October      2015,     appellant    acknowledged
    receiving a copy of the notice and was again advised of his right
    to representation by counsel.                   Appellant declined counsel and
    waived    the    probable      cause      hearing,    electing     instead   for    an
    2                                A-3861-15T3
    immediate parole violation hearing.   During the hearing, appellant
    admitted to frequent use of marijuana since his release on parole
    but sought leniency.    The parole officer recommended a revocation
    of parole.
    The hearing officer noted that appellant "had shown little
    willingness to curb his conduct based on the alternatives to
    incarceration he was already afforded [and] there was nothing in
    the record to support that he would suddenly change course if
    continued on parole."     The officer recommended a revocation of
    parole and establishment of a fourteen month FET.
    In its review, a two-member Board panel agreed with the
    hearing officer's recommendation, noting that "[a]lternatives to
    incarceration have failed to deter [appellant's] noncompliant
    conduct."    The panel found a violation of supervision had occurred
    requiring the revocation of parole and set an FET of fourteen
    months.   The full Board issued a final agency decision on December
    8, 2015, affirming the revocation of parole and establishment of
    a fourteen-month FET.
    Appellant raises the following points on appeal:
    POINT ONE:     THE NEW JERSEY STATE PAROLE
    BOARD'S REVOCATION OF PAROLE WAS ARBITRARY AND
    CAPRICIOUS, WHERE THE REASONS STATED FOR
    DENIAL WERE INADEQUATE AND THE DENIAL WAS NOT
    SUPPORTED BY CREDIBLE EVIDENCE CONTAINED IN
    THE RECORD.
    3                          A-3861-15T3
    POINT TWO:     THE NEW JERSEY STATE PAROLE
    BOARD'S REVOCATION OF PAROLE WAS ARBITRARY AND
    CAPRICIOUS, WHERE APPELLANT ARTICULATED TO HIS
    PAROLE OFFICER, HIS DEPRESSION, ASSOCIATED
    WITH THE DEATH OF HIS MOTHER PRIOR TO HIS
    RELEASE ON PAROLE AND PROVIDED A NEXUS BETWEEN
    THAT AND HIS MARIJUANA USE, YET PAROLE NEVER
    OFFERED OR ORDERED HIM TO ENROLL INTO CRISIS
    AND/OR BEREAVEMENT COUNSELING OR A DRUG
    PROGRAM SPECIFIC TO HIS INSTANT NEEDS AT THAT
    TIME. (Not Raised Below)
    POINT THREE:    THE NEW JERSEY STATE PAROLE
    BOARD'S REVOCATION OF PAROLE WAS ARBITRARY AND
    CAPRICIOUS, WHERE APPELLANT'S DUE PROCESS
    RIGHTS HAVE BEEN INFRINGED UPON WHEN APPELLANT
    WAS DENIED A POLYGRAPH EXAMINATION TO CLEAR
    HIMSELF OF THE ALLEGATIONS AGAINST HIM.
    Our standard of review of administrative decisions by the
    Board is limited and "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).              "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 and Corr.
    Complex, 
    442 U.S. 1
    , 10, 
    99 S. Ct. 2100
    , 2105, 
    60 L. Ed. 2d 668
    ,
    677 (1979)).       "To a greater degree than is the case with other
    administrative          agencies,   the   Parole    Board's     decision-making
    function involves individualized discretionary appraisals." 
    Ibid. (citing Beckworth v.
    N.J. State Parole Bd., 
    62 N.J. 348
    , 358-59
    (1973)).
    4                             A-3861-15T3
    Consequently, our courts "may overturn the Parole Board's
    decisions only if they are arbitrary and capricious."              
    Ibid. With respect to
    the Board's factual findings, we do not disturb them
    if they "could reasonably have been reached on sufficient credible
    evidence in the whole record."             
    Id. at 172
    (quoting Trantino v.
    N.J. State Parole Bd., 
    154 N.J. 19
    , 24 (1998)).
    After considering the arguments advanced on appeal, and the
    record in light of all legal principles, we conclude that they are
    without    sufficient   merit    to   warrant    discussion   in    a   written
    opinion.    R. 2:11-3(e)(1)(E).        We add only the following brief
    remarks.
    Appellant agreed to the specific conditions of his release
    on parole: that he could not use, purchase or possess controlled
    dangerous substances and that he had to successfully complete a
    drug treatment program.         It was undisputed by appellant at the
    revocation hearing that he had violated both of these conditions.
    We are satisfied that appellant was accorded his due process
    rights.     He was notified of the probable cause hearing, his
    entitlement to counsel, his opportunity to present witnesses and
    evidence, and he was issued a written opinion explaining the
    reasons for the revocation of his parole.
    The Board's findings and its establishment of a fourteen-
    month FET are neither arbitrary nor unreasonable as appellant
    5                                A-3861-15T3
    argues, but rather are supported by the credible evidence found
    in the record.
    Affirmed.
    6                        A-3861-15T3
    

Document Info

Docket Number: A-3861-15T3

Filed Date: 8/24/2017

Precedential Status: Non-Precedential

Modified Date: 4/18/2021