GEORGE S. BUSSINGER VS. NEW JERSEY STATE PAROLE BOARD (NEW JERSEY STATE PAROLE BOARD) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-3254-19T2
GEORGE S. BUSSINGER,
a/k/a STEVE BUSSINGER,
Appellant,
v.
NEW JERSEY STATE
PAROLE BOARD,
Respondent.
_________________________
Submitted October 1, 2020 – Decided October 21, 2020
Before Judges Geiger and Mitterhoff.
On appeal from the New Jersey State Parole Board.
George S. Bussinger, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Suzanne Davies, Deputy Attorney
General, on the brief).
PER CURIAM
George S. Bussinger appeals from a final agency decision of the New
Jersey State Parole Board (Board) revoking his mandatory supervision status
and establishing a twelve-month parole eligibility term. We affirm.
We derive the following facts from the record. In December 2001,
Bussinger robbed a casino cashier at Caesar's Casino in Atlantic City. Later that
month, he was arrested by Philadelphia Police for unrelated crimes committed
in Pennsylvania. Bussinger admitted to committing the robbery when
interviewed by detectives from New Jersey.
Bussinger pled guilty to first-degree robbery, N.J.S.A. 2C:15-1, and was
sentenced to an eight-year term subject to eighty-five percent parole ineligibility
and a five-year period of mandatory parole supervision upon his release from
custody under the No Early Release Act, N.J.S.A. 2C:43-7.2.
On January 14, 2014, Bussinger was released from custody and began
serving the five-year period of mandatory parole supervision. Prior to his
release, Bussinger agreed to abide by the conditions of parole imposed by the
Board or the District Parole Office, which included reporting in person to his
parole officer, residing at a residence approved by his parole officer, obtaining
permission from his parole officer prior to any change of residence, and
obtaining permission from his parole officer prior to leaving the state of his
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approved residence. Parole supervision was transferred to Pennsylvania, where
he resided.
On July 7, 2017, Bussinger left his residential community program at
Coleman Hall and never returned. Parole violation warrants were issued for his
arrest. Bussinger made no attempt to contact his parole officer or seek approval
to change his residence while he remained a fugitive. He was ultimately arrested
in Philadelphia during a traffic stop on May 30, 2019, some twenty-one months
after he absconded.
The Pennsylvania Board of Probation and Parole recommitted Bussinger
for changing his residence without permission and failing to complete the
required programming at Coleman Hall. It relied on Bussinger's own testimony
in reaching that decision.
Shortly thereafter, the New Jersey State Parole Board subsequently served
Bussinger with notice of a parole revocation hearing. At the hearing, Bussinger
pleaded guilty to all three violations and admitted that he had failed to report in
person, failed to live at his approved residence, and failed to obtain permission
to change his residence.
Bussinger testified that he absconded in order to live with his mother, who
had cancer. He did not seek permission to change his residence because he
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thought it might be denied. Although his mother died in June 2018, Bussinger
stated he did not plan to surrender until an anticipated "amnesty period" in May
2019 that never occurred.
The Board found that Bussinger violated his parole supervision terms and
revoked parole supervision status. The Board ordered him to serve a twelve-
month future eligibility term (FET). This appeal followed.
Bussinger raises the following points for our consideration:
POINT I
THE TERM "SERIOUS", AS USED IN N.J.S.A. 30:4-
123.60 IS OVERLY BROAD (Not Raised Below).
POINT II
THE RESPONDENT FAILED TO SHOW THAT
CLEAR AND CONVINCING EVIDENCE
SUPPORTED ITS FINDING THAT THE
VIOLATIONS WERE "SERIOUS" AS USED IN THE
STATUTE.
POINT III
REVOCATION OF PAROLE WILL IMPEDE
REHABILITATION CONTRARY TO THE
LEGISLATIVE INTENT OF NEW JERSY PAROLE
LAWS.
We have carefully considered Bussinger's arguments in light of the record
and controlling legal principles. We affirm, substantially for the reasons
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expressed in the Board's comprehensive written decision, which is supported by
sufficient credible evidence in the record as a whole. R. 2:11-3(e)(1)(D). We
add the following comments.
Our review of a Parole 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, modified, 167 N.J. 619 (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 his mandatory supervision status and establishing a
twelve-month FET. The Board's determination is amply supported by the record
and consistent with controlling law. Its decision was not arbitrary, capricious,
or unreasonable.
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). Bussinger argues that the term "seriously or persistently
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violated" is overly broad and ambiguous because the word "serious" is not
defined by statute or regulation. We disagree.
We recognize 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 v. N.J. State Parole Bd., 435 N.J. Super. 377, 382
(App. Div. 2014).
"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 (2016) (quoting Beckworth v. N.J. State
Parole Bd., 62 N.J. 348, 359 (1973)). The Board properly exercises its authority
to revoke parole when there is "proof by clear and convincing evidence that the
person 'has seriously or persistently violated the conditions' without any
statutory or regulatory definition of that term.'" Hobson, 435 N.J. Super. at 382.
By any measure, Bussinger's parole violations were serious and persistent.
He failed to abide by several important parole conditions. He did not turn
himself in. The evidence was clear and convincing that he remained totally
noncompliant for twenty-one months until he was arrested.
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In addition, for the first time on appeal in his reply brief, Bussinger argues
that because of COVID-19, the Department of Corrections "is in a virtual lock-
down" and "all rehabilitative programming has ceased." He claims that "the
pandemic and conditions brought about by it make the revocation of parole
unconstitutional" because "the revocation (i.e. punishment) does not . . .
conform with contemporary standards of decency," is "grossly disproportionate
to the offense," and "goes beyond what is necessary to accomplish any legitimate
penological objective." (Alteration in original).
In addition, Bussinger argues that his "single-episode, nonviolent and
noncriminal" violation of his parole conditions should not "subject him to the
cruel, unusual and inhumane treatment that he will be subject to once the
[COVID-19] virus enters the New Jersey Department of Corrections." We are
unpersuaded by his argument. Bussinger violated several fundamental
conditions of parole. The long-standing violations were ongoing until he was
arrested.
Moreover, Bussinger, who is now forty-four years old, does not claim his
age or any underlying medical condition makes him vulnerable to an enhanced
risk of serious medical complications if he were to contract COVID-19, as
recognized by the Center for Disease Control. Nor does he claim he suffers from
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serious medical conditions not adequately treated by the Department of
Corrections. Instead, Bussinger raises a mere generalized fear of contracting
COVID-19.
As our Supreme Court recently made clear, in the context of the COVID-
19 pandemic, "the nature of the inmate's illness and the effect of continued
incarceration on his health" are the basis for a change in custody. In re Request
to Modify Prison Sentences, Expedite Parole Hearings & Identify Vulnerable
Inmates, ___N.J. ___, ___ (2020) (slip op. at 20). In order to obtain a change in
custody, the "inmate[] must present evidence of both an [underlying] 'illness or
infirmity' . . . and the increased risk of harm that incarceration poses to that
condition. A generalized fear of contracting an illness is not enough." Id. at 20-
21.
Bussinger's unsupported argument is without sufficient merit to warrant
further discussion in this opinion. R. 2:11-3(e)(2). Our holding is without
prejudice to Bussinger filing a properly supported motion in the trial court for a
change in custody under Rule 3:21-10(b).1
1
Because he was convicted of first-degree robbery, Bussinger is not eligible for
an emergency medical furlough under Executive Order No. 124 (Apr. 10, 2020).
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Bussinger's remaining arguments are also without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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