BRENDA TAYLOR VS. NEW JERSEY STATE PAROLE BOARD (NEW JERSEY STATE PAROLE BOARD)

• Court: New Jersey Superior Court Appellate Division
• Decided: January 8, 2019
• Docket: A-1755-17T3
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1755-17T3

BRENDA TAYLOR,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent. ________________________________

Submitted December 11, 2018 – Decided January 8, 2019

Before Judges Geiger and Firko.

On appeal from the New Jersey State Parole Board.

Rawle & Henderson LLP, attorneys for appellant (Derek E. Barrett, on the brief).

Gurbir S. Grewal, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Erica R. Heyer, Deputy Attorney General, on the brief).

PER CURIAM In 2013, petitioner Brenda Taylor – a prison inmate – pleaded guilty to

one count of second-degree robbery, N.J.S.A. 2C:15-1, after attempting to rob a

cab driver at knifepoint while under the influence of heroin and crack cocaine.

She was sentenced to a five-year term of imprisonment subject to the No Early

Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a three-year period of

mandatory parole supervision following her release from custody.

In 2017, petitioner became eligible for parole and received her conditions

for mandatory supervision that included "refrain[ing] from the purchase, use,

possession, distribution, or administration of any narcotic drug, controlled

dangerous substances, or controlled substance . . . ." She was also prohibited

from "frequenting establishments whose primary purpose is the sale of alcohol."

Approximately a month after her release, Taylor was arrested after admitting to

using cocaine. Two wax folds in her wallet marked "diesel" were found and

suspected to be heroin.

After being served with a notice of probable cause hearing, Taylor waived

her right to same, thereby converting the proceeding to a final parole revocation

hearing. Laboratory test results were positive for cocaine use, and Taylor

acknowledged violating the terms of her parole. She pleaded guilty to the parole

violation and apologized for her behavior. The hearing officer recommended

A-1755-17T3 2 that Taylor's parole be revoked based upon a finding by clear and convincing

evidence that she violated her parole conditions and he imposed a fourteen-

month future eligibility term (FET). Taylor administratively appealed. The full

Parole Board issued a final agency decision on July 14, 2017, revocating parole

and establishing a fourteen-month FET.

Petitioner appeals, arguing:

THE N.J. STATE PAROLE BOARD'S DENIAL OF PAROLE WAS ARBITRARY AND CAPRICIOUS IN THAT IT IGNORED INCONSISTENCIES IN THE RECORD TO ACHIEVE A PRE-DETERMINED RESULT.

Parole Board decisions are highly "individualized discretionary

appraisals." Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (quoting

Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)). Such decisions

are entitled to both a presumption of validity, In re Vey, 272 N.J. Super. 199,

205 (App. Div. 1993), and deference to the Parole Board's "expertise in the

specialized area of parole supervision . . . ." J.I. v. N.J. State Parole Bd., 228

N.J. 204, 230 (2017) (citing McGowan v. N.J. State Parole Bd., 347 N.J. Super.

544, 563 (App. Div. 2002)). We do not intervene in such determinations unless

they are: arbitrary, capricious, or unreasonable; lack fair support in the evidence;

or violate legislative policies. Trantino v. N.J. State Parole Bd., 154 N.J. 19,

A-1755-17T3 3 24-25 (1998). We defer to the Parole Board's decision to impose a particular

FET so long as it is not arbitrary and capricious or unsupported by substantial

credible evidence. Hare v. N.J. State Parole Bd., 368 N.J. Super. 175, 179-80

(App. Div. 2004) (citing Trantino, 166 N.J. at 173).

Taylor contends that the Board relied upon "inaccurate" information, that

it was only interested in revoking her parole, and that it improperly recited her

criminal history, including her juvenile record and drug use. The so-called

"inaccuracies" Taylor refers to include the Board's decision which states, "you

admitted to having used cocaine on May 5, 2017 and having used and possessed

heroin on May 5, 2017." Taylor contends that she denied using or possessing

heroin, and that the substance found on her person was only assumed to be

heroin, but this was never confirmed. The record also reflects that Taylor denied

any use or possession of heroin and opioids, but she admitted to cocaine use.

We are not persuaded by petitioner's argument. The fact remains that

Taylor admitted using cocaine and violating the conditions of her parole.

Despite her claims that there was only "one lapse," there is no question that

Taylor violated her parole conditions multiple times. For example, she

frequented restaurants that served alcohol on two separate occasions, including

one incident where she stated "she [was] going to get fucked up," in a video that

A-1755-17T3 4 she posted on Facebook. Taylor also continued to reside with her mother, after

being informed that she was not allowed to do so because of "potential issues"

her mother had with the Division of Child Protection and Permanency. When

Taylor was told that a curfew may need to be imposed in her case, she responded

that she would "refuse to cooperate" with it. We are not persuaded by her

argument that these instances qualify as "one lapse," and that she deserves

another chance of parole.

When inmates are sentenced to parole supervision, they are "subject to the

provisions and conditions set by the appropriate [B]oard panel." N.J.S.A. 30:4-

123.51b(a). The Board has the authority to revoke a person's parole and return

him or her to custody for the remainder of their terms, "or until it is determined,

in accordance with regulations adopted by the [B]oard, that the person is again

eligible for release . . . ." Ibid. The Board may revoke a person's parole only

by proof of clear and convincing evidence that defendant "has seriously or

persistently violated the conditions[,]" N.J.S.A. 30:4-123.60(b); N.J.S.A. 30:4-

123.63(d), or that person has been convicted of a crime while on release.

N.J.S.A. 30:4-123.60(c).

Although the Legislature has not defined "the type of conduct it intended

to capture within the statutory standard – 'seriously or persistently violated[,]'

A-1755-17T3 5 [a]nd the Board has not adopted a regulation to guide exercise of its expertise to

distinguish cases in which the parole should and should not be revoked[,]" the

Board has determined that drug use is a severe parole violation. Hobson v. N.

J. State Parole Bd., 435 N.J. Super. 377, 382 (App. Div. 2014) (reversing the

Board's finding that there was clear and convincing evidence of a serious parole

violation, only because the substance found on the parolee was not confirmed to

be illicit). We agree that defendant's use of cocaine while on probation was a

severe parole violation warranting revocation.

Lastly, Taylor contends that the Board did not make a finding that she

would commit another crime or "why one non-violent lapse makes one likely to

commit another crime." She accused the Board of "re-hash[ing]" her criminal

record, instead of evaluating her propensity for recidivism. The Board was

concerned with Taylor's history that:

she has been using a variety of illegal drugs for the past fifteen years (marijuana, PCP, cocaine, heroin); the fact that [she] [has] nine prior juvenile adjudications and twenty-one prior adult convictions; the fact that [she] [has] had four prior opportunities for community release, supervisions and treatment (at least [three] drug treatment programs), each of which such opportunity was followed by a near immediate return to criminal activity and drug use.

A-1755-17T3 6 Having reviewed the record, we conclude that there was clear and

convincing evidence that Taylor violated the conditions of her parole. It is

undisputed that Taylor used cocaine, and that this violation was of a magnitude

and significance to support parole revocation. In accord with our standard of

review, we also conclude that the Board's determination was not arbitrary,

capricious, or unsupported by substantial credible evidence in the record. Hare,

368 N.J. Super. at 179-80.

We find insufficient merit in petitioner's arguments to warrant further

discussion in a written opinion. R. 2:11-3(e)(1)(D).

Affirmed.

A-1755-17T3 7