ROBERT CURRIER 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NOT FOR PUBLICATION WITHOUT THE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-3519-13T3
ROBERT CURRIER,
Appellant,
v.
NEW JERSEY STATE PAROLE
BOARD,
Respondent.
_______________________________
Submitted January 31, 2017 – Decided October 26, 2017
Before Judges Suter and Guadagno.
On appeal from the New Jersey State Parole
Board.
Tucker Law Group, attorneys for appellant
(Ricardo R. Jefferson, of counsel; Mr.
Jefferson and Ian S. Clement, on the
briefs).
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
Robert Currier appeals from the final agency decision of
the New Jersey State Parole Board (Board) concurring with the
decision of a board panel revoking his parole and establishing a
twelve-month future eligibility term (FET). We affirm.
Tried to a jury in 1988, Currier was convicted of first-
degree robbery and third-degree unlawful possession of a weapon.
Initially sentenced to life imprisonment as a persistent
offender, Currier was resentenced in 1991 after a remand by the
Supreme Court, 126 N.J. 388, to an extended term of fifty years
with a mandatory minimum term of seventeen years.
In January 2012, Currier became eligible for parole for the
fourth time.1 He was released with a maximum parole date of
January 24, 2019. In April 2012, Currier tested positive for
cocaine, valium, and hydrocodone. A decision on revocation was
deferred to allow Currier to enroll in an intensive outpatient
or in-patient treatment program. In September 2012, Currier was
arrested in Naples, Florida and charged with driving under the
influence of alcohol (DUI). Currier was convicted on the DUI
charge and sentenced to probation. A parole violation warrant
was issued and Currier was arrested and extradited to New
Jersey.
1
Currier was paroled in 2006, and revoked in 2009. He was
paroled later in 2009, but revoked again later that year.
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In March 2013, Currier waived a probable cause hearing and
proceeded to a final revocation hearing. Hearing Officer Carla
Shabazz heard testimony from Florida parole officer Peter Arvin,
and Currier's wife, Evelyn Currier. Currier admitted to four of
the five violations of conditions and special conditions
including testing positive for cocaine, failing to report to his
parole officer, and the DUI conviction, but contested the charge
that he failed to participate in a substance abuse program.
Peter Arvin testified that he provided Currier with sign-in
sheets to verify his attendance at NA/AA meetings but Currier
failed to return the sheets. Currier testified that he attended
NA/AA meetings six days a week from January through March 2012
but did not obtain sign-in sheets because he believed he was not
under an obligation to attend.
Evelyn Currier testified that her husband completed a
twenty-eight-day drug and alcohol program in July 2012 and was
"diligent" in attending AA meetings.
Shabazz sustained the violation that Currier failed to
participate in a substance abuse program, noting "he appeared
familiar with the group vernacular" and failed to provide proof
of attendance. She found that clear and convincing evidence
established Currier committed the violations, which she deemed
"serious and persistent." She noted that, while Currier
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was on parole supervision for approximately
nine months and he had several violations of
supervision, specifically and most serious is
subject's use of alcohol despite opportunities
in treatment programs and a new conviction for
[DUI]. It appears based on subject's non-
compliance that he is unwilling or unable to
comply with parole supervision.
Shabazz's recommendation that Currier's parole be revoked
was reviewed and adopted by a two-member Board panel. Currier
appealed to the full Board. On February 26, 2014, the Board
affirmed the Board panels' decision.
On April 10, 2014, Currier's counsel filed a notice of
appeal, but the appeal was dismissed on October 29, 2015 for
failure to prosecute. We reinstated the appeal on March 4,
2016. Currier now raises one point on appeal:
POINT I
THE COURT MUST REVERSE THE REVOCATION OF MR.
CURRIER'S PAROLE BECAUSE THE BOARD'S
DECISION WAS ARBITRARY AND CAPRICIOUS AS IT
DID NOT CONSIDER ALL OF THE EVIDENCE BEFORE
IT.
Our scope of review here is limited and subject to the same
standard as other administrative reviews. Trantino v. N.J. State
Parole Bd., 166 N.J. 113, 173 (2001) (Trantino VI). We must
affirm the administrative action unless it was "arbitrary,
capricious or unreasonable, or not supported by substantial
credible evidence in the record as a whole." Warren Hosp. v.
4 A-3519-13T3
N.J. Dep't of Human Servs., Div. of Mental Health Servs., 407
N.J. Super. 598, 610 (App. Div. 2009) (quoting SSI Med. Servs.,
Inc. v. State, Dep't of Human Servs., Div. of Med. Assistance
and Health Servs., 146 N.J. 614, 620 (1996)). "The burden of
demonstrating arbitrary, capricious or unreasonable action rests
upon the party challenging the administrative action." Ibid.(citing McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544,
563 (App. Div. 2002)). We accord a "strong presumption of
reasonableness" to the agency's exercise of its statutorily-
delegated responsibilities. Newark v. Natural Res. Council Dep't
Envtl. Prot., 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101
S. Ct. 400, 66 L. Ed. 2d 245 (1980).
Currier contends that the Board "rubber stamped" the
hearing officer's recommendation without independently
considering the evidence. We disagree.
The Board's decision first identified the five violations
Currier was charged with:
1. Failure to obey all laws and ordinances;
2. Failure to report as instructed;
3. Failure to refrain from the use or possession of
controlled dangerous substances;
4. Failure to participate in a substance abuse self
help program with community sponsor; and
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5. Failure to refrain from alcohol usage.
The Board then noted that Currier admitted to all of the
violations with the exception of the requirement that he
participate in a substance abuse treatment program. The Board
rejected Currier's claim that the hearing officer refused to
accept evidence that he had attended various drug and alcohol
recovery programs, noting the record indicates that there was
"substantial and significant testimony given concerning Mr.
Currier's recovery program attendance."
Currier claims that the Board failed to consider his
automobile accident and that his relapse was caused in part by
his inability to obtain prescribed narcotics. The Board's
decision indicated that the Board panel considered Currier's
statements in mitigation of the violations.
Based upon our review of the record and legal arguments, we
are satisfied that the Board had ample factual and legal basis
to conclude that clear and convincing evidence was presented to
demonstrate that Currier violated the conditions of his parole
and revocation was appropriate.
Affirmed.
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