OMAR ROSS VS. NEW JERSEY STATE PAROLE BOARD (NEW JERSEY STATE PAROLE BOARD) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-3791-16T4
OMAR ROSS,
Appellant,
v.
NEW JERSEY STATE
PAROLE BOARD,
Respondent.
_______________________
Submitted February 25, 2019 – Decided May 15, 2019
Before Judges Haas and Sumners.
On appeal from the New Jersey State Parole Board.
Omar Ross, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa Dutton Schaffer, Assistant
Attorney General, of counsel; Christopher C.
Josephson, Deputy Attorney General, on the brief).
PER CURIAM
Omar Ross, currently an inmate incarcerated at New Jersey State Prison,
appeals from a final agency decision by the New Jersey State Parole Board
(Board) revoking his parole and establishing a thirteen-month future eligibility
term (FET). We affirm.
Having pled guilty to second-degree robbery, N.J.S.A. 2C:15-1 and third-
degree burglary, N.J.S.A. 2C:18-2, Ross was sentenced on July 31, 2009, to an
aggregate prison term of ten years, subject to the No Early Release Act, N.J.S.A.
2C:43-7.2, which included three years of mandatory parole supervision.
After serving eighty-five percent of his sentence, Ross was released on
mandatory parole supervision. Within five months, Ross was charged with
violation of parole for failing to successfully complete the PROMISE program
for substance abuse. A hearing officer subsequently found by clear and
convincing evidence that Ross had violated his parole by not completing the
program. This was followed by the determination of a two-member Board Panel
to uphold the hearing officer’s findings and decision, revoke Ross' parole, and
impose a thirteen-month FET.
Ross' appeal of his parole revocation and the thirteen-month FET to the
full Board was denied. The full Board decided that the Panel "reviewed and
considered all relevant facts pertaining to Mr. Ross' violations of the conditions
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of his mandatory supervision and determined that there was clear and convincing
evidence [of the violation]."
In his appeal, Ross raises the following arguments:
POINT I
[THE BOARD] FAILED TO MEET THE CLEAR
AND CONVINCING EVIDENCE STANDARD, AND
AS A RESULT, THE PANEL VIOLATED [N.J.A.C.]1
10A:71-7.12 BY REVOKING APPELLANT’S
PAROLE.
POINT II
THE PANEL’S DECISION WAS A[R]BITRARY
AND CAPRICIOUS BECAUSE IT FAILED TO
[DOCUMENT] CLEAR AND CONVINCING
EVIDENCE DEMONSTRATING THAT
APPELLANT SERIOUSLY OR PERSISTENTLY
VIOLATED CONDITIONS OF PAROLE.
We have considered the contentions raised by Ross and conclude that they are
without sufficient merit to warrant discussion in this opinion. R. 2:11-
3(e)(1)(E). We affirm substantially for the reasons expressed by the Board in
its thorough decision. We add the following remarks.
In reviewing a final decision of the Board, we consider: (1) whether the
Board's action is consistent with the applicable law; (2) whether there is
1
Incorrectly cited as N.J.S.A. in the brief.
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substantial credible evidence in the record as a whole to support its findings;
and (3) whether in applying the law to the facts, the Board erroneously reached
a conclusion that could not have been reasonably made based on the relevant
facts. Trantino v. N.J. State Parole Bd., 154 N.J. 19, 24 (1998). Consequently,
where the Board has applied the correct legal standard, our role is limited to
determining whether the decision was arbitrary, capricious or unreasonable.
McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002).
We "must determine whether the factual finding could reasonably have been
reached on sufficient credible evidence in the whole record." Hare v. N.J. State
Parole Bd., 368 N.J. Super. 175, 179 (App. Div. 2004). In making this
determination, we "may not substitute [our] judgment for that of the agency, and
an agency's exercise of its statutorily-delegated responsibilities is accorded a
strong presumption of reasonableness." McGowan, 347 N.J. Super. at 563(citation omitted). Thus, "[t]he burden of showing that an action was arbitrary,
unreasonable or capricious rests upon the appellant." Ibid.In this matter, the Board's ruling was consistent with the applicable law
as its extensive findings, which we need not repeat here, are based upon credible
evidence in the record demonstrating a sound basis for its decision to revoke
Ross' parole. And in its final decision, the Board articulated ample cause for
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imposing the thirteen-month FET, which is neither arbitrary nor capricious. On
this record, we thus have no reason to second-guess those findings or
conclusions.
Affirmed.
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