TYREESE EVANS VS. NEW JERSEY STATE PAROLE BOARD (NEW JERSEY STATE PAROLE BOARD)

T
                                NOT FOR PUBLICATION WITHOUT THE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-4037-19

TYREESE EVANS, a/k/a
TAJ EVANS,

          Appellant,

v.

NEW JERSEY STATE
PAROLE BOARD,

     Respondent.
_____________________

                   Submitted April 13, 2021 – Decided May 5, 2021

                   Before Judges Yannotti and Natali.

                   On appeal from the New Jersey State Parole Board.

                   Tyreese Evans, appellant pro se.

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Sookie Bae-Park, Assistant Attorney
                   General, of counsel; Suzanne M. Davies, Deputy
                   Attorney General, on the brief).

PER CURIAM
      Tyrese Evans appeals from a May 27, 2020 New Jersey State Parole Board

(Board) final agency decision revoking his mandatory supervision status and

establishing a twelve-month parole eligibility term. We affirm.

      Evans pled guilty to conspiracy to commit robbery, aggravated

manslaughter, and unlawful possession of a weapon. He was sentenced to an

aggregate ten-year prison term with an eighty-five percent period of parole

ineligibility and a five-year period of mandatory parole supervision under the

No Early Release Act, N.J.S.A. 2C:43-7.2. One of the conditions of Evans'

parole barred him "from the purchase, use, possession, distribution, or

administration of any narcotic drug, controlled dangerous substance [(CDS)], or

[CDS] analog" or "imitation [CDS] or imitation [CDS] analog."

      After completing the custodial portion of his sentence, Evans was arrested

while on parole by Officer Shawn Dunphy for aggravated assault. During a

search incident to his arrest, Officer Dunphy seized a plastic bag located in

Evans' pocket containing "twenty pills of suspected [Ecstasy/MDMA 1], with

varying colors and stamp[ed] images on them."




1
  MDMA, or methylenedioxymethamphetamine, is a CDS commonly known by
the street names Ecstasy or Molly.
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      As a result of his arrest, the Board commenced parole revocation

proceedings against Evans pursuant to N.J.S.A. 30:4-123.62.          He was also

charged with possession of a CDS contrary to N.J.S.A. 2C:35-10(a)(1). Evans

was notified of the parole revocation hearing, declined his right to counsel, and

proceeded without legal representation.

      At the hearing, Officer Dunphy conceded that he had not obtained

laboratory results to confirm that the pills were illegal drugs but stated "based

on the[ir] appearance" he believed they were either actual or imitation CDS.

Officer Dunphy recommended the Board revoke Evans' parole and explained:

             [Evans] . . . seriously violated the conditions of his
             mandatory supervision, specifically, [Evans] has been
             charged with committing a new aggravated assault and
             was found to be in possession of illegal narcotics.
             [Evans'] behavior makes him a threat to the community
             and unsuitable for community supervision.

      Evans disputed that the pills were illegal. He testified that he does not use

drugs, and stated he never provided "dirty urine" during his two years of

mandatory parole supervision. Finally, he appeared to disclaim ownership of

the pills as he stated he changed out of his work clothes and put on his brother's

pants prior to his arrest.

      The hearing officer concluded that there was clear and convincing

evidence that Evans was in possession of illegal narcotics in violation of his

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                                        3
parole. He found the testimony of Officer Dunphy to be detailed, credible,

reliable, and supported by his training and experience. Conversely, the hearing

officer determined that Evans' testimony lacked overall credibility and

reliability. On July 10, 2019, a Board panel affirmed the hearing officer's

decision.

      Evans filed an administrative appeal. He argued that the panel's decision

should be reversed because its finding that he possessed an illegal substance was

unsupported by confirmatory laboratory results. The panel agreed, vacated the

July 10, 2019 decision, and scheduled a de novo probable cause hearing . It did

not appear to address that condition of Evans' parole which prohibited him from

possessing imitation drugs.

      Evans retained counsel, waived the probable cause hearing, and decided

to proceed directly to a second parole revocation hearing. At that hearing,

Officer Dunphy testified again and explained that a condition of Evans' parole

prohibited him from possessing not only actual CDS, but imitation or analog

drugs as well.

      Officer Dunphy conceded that the seized pills were not tested. He also

did not introduce the pills at the hearing or provide photographs of the seized

contraband. Instead, Officer Dunphy stated that based on his training and


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                                       4
experience, "the substance found in [Evans'] pocket had the appearance of

Ecstasy/MDMA pills."

      The hearing officer recommended revocation of Evans' mandatory

supervision and the imposition of a twelve-month eligibility term. He noted that

a condition of Evans' parole prohibited him from possessing not only actual

CDS, but analog or imitation illegal drugs. The hearing officer found Officer

Dunphy's testimony credible and reliable and concluded based on his testimony

"that clear and convincing evidence . . . exist[ed] to believe that [Evans] was in

possession of imitation CDS," and therefore violated a condition of his parole.

      The hearing officer also explained that although Evans was "working,

attending school, maintaining a stable residence, and testing negative fo r

substances," his "positive behavior on parole, [did] not negate the commission

of the violation." Finally, the hearing officer found that Evans' violation was

serious, and revocation of his parole was a necessary consequence of his actions.

On February 19, 2020, a Board panel accepted the hearing officer's factual

findings and recommendations.

      On May 27, 2020, the Board issued a final notice of agency decision

affirming the panel's February 19, 2020 decision. In a written decision, the

Board determined that the panel "reviewed and considered all relevant facts


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                                        5
pertaining to [Evans'] violation of the condition of [his] mandatory supervision "

and concluded that "clear and convincing evidence exist[ed] that [Evans had]

seriously violated the condition of mandatory supervision and revocation of

[his] mandatory supervision status [was] desirable."

      This appeal followed in which Evans raises the following points for our

consideration:

           I.    THE ALLEGATION LODGED AGAINST
                 APPELLANT SHOULD NOT HAVE BEEN
                 SUSTAINED BY THE PAROLE BOARD DUE TO
                 THE DISQUALIFICATION OF THE PAROLE
                 OFFICER    TO      DELINEATE    AND
                 CORROBORATE HIS TESTIMONY.

          II.    THE AGENCY'S FAILURE TO ADDRESS THE
                 MERITS OF APPELLANT'S APPEAL RENDERS
                 THE DECISION TO REVOKE PAROLE
                 ARBITRARY,    CAPRICIOUS       AND     A
                 VIOLATION        OF          APPELLANT'S
                 CONSTITUTIONAL RIGHT TO DUE PROCESS
                 OF LAW AS GUARANTEED BY THE U.S.
                 CONSTITUTION['S]           [FOURTEENTH]
                 AMENDMENT . . . [AND] N.J. CONST. ART. I,
                 PARA. 8.

      We have carefully considered Evans' arguments in light of the record and

controlling legal principles. We affirm, substantially for the reasons expressed

in the Board's written decision, which is supported by sufficient credible




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                                        6
evidence in the record as a whole. R. 2:11-3(e)(1)(D). We add the following

comments.

      Our review of a 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 (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 Evans' mandatory supervision status and establishing a

twelve-month parole eligibility term.        The Board's determination is amply

supported by the record and consistent with controlling law. Its decision was

not arbitrary, capricious, or unreasonable.

      Primarily relying on Hobson v. N.J. State Parole Board., 

435 N.J. Super.

377

(App. Div. 2014), Evans argues that the Board's decision was arbitrary and

capricious because Officer Dunphy failed to corroborate his testimony with

forensic testing or other evidence to establish that the seized pills were actual or


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imitation CDS. He further contends that the Board's decision violated his due

process rights. We are not persuaded by either of these arguments.

      "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 (quoting Beckworth v. N.J. State Parole

Bd., 

62 N.J. 348

, 359 (1973)). 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). We have recognized 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,

435 N.J. Super. at 382

.

      By any measure, Evans' parole violation was serious. He failed to abide

by an important parole condition prohibiting his possession of analog or

imitation drugs. The evidence was clear and convincing that he was non-

compliant with that condition.

      We find Evans' reliance on Hobson misplaced as that case is factually

distinguishable. In Hobson, we concluded that the Board failed to prove an


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                                        8
imitation CDS violation by clear and convincing evidence. After analyzing the

statutory text of the imitation CDS offense defined in N.J.S.A. 2C:35-11, we

examined the testimony presented to determine whether it supported a finding

of a parole violation for possession of an imitation 

CDS. 435 N.J. Super. at 389

.

We explained:

            [The parole officer involved in the stop] provided the
            only evidence tending to establish that the green
            vegetative substance [the parolee] possessed was an
            "imitation [CDS]." [The officer] said, "[i]t was a green
            vegetative substance that was packaged as CDS." [The
            officer's] testimony, however, included no comparison
            of the packaging she observed in this case and the
            packaging of CDS. Without such a comparison, that
            testimony was not even adequate to prove by a
            preponderance of the evidence that the substance [the
            parolee] had "was packaged in a manner normally used
            for the unlawful distribution of [CDS] or [CDS]
            analogs."

            [Ibid.]

We further noted, "[t]here was no evidence that the green vegetative substance

the officers claimed to find was marijuana" and that "[n]either the substance nor

a photograph of the evidence was produced at the hearing."

Id. at 385.

      We acknowledge that the evidence presented in the case before us suffers

from some of the same infirmities as in Hobson. For example, Officer Dunphy

failed to present proof that the suspected CDS were forensically tested. Also,


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                                       9
as in Hobson, the parole officer did not introduce into evidence photographs of

the seized contraband.

      Significantly, however, unlike the testimony in Hobson, Officer Dunphy

relied on his training and experience and compared the seized pills to the

appearance of illegal drugs. It was reasonable for the Board to rely on this

testimony, which it deemed credible, when determining if Evans possessed an

imitation CDS in violation of his parole. Indeed, under N.J.S.A. 2C:35-11(a)(3),

it is a violation of the imitation CDS statute if "circumstances exist which would

lead a reasonable person" to believe the substance is an illegal drug. "Prima

facie evidence of such circumstances" exists when the facts establish that "[t]he

physical appearance of the substance is substantially the same as that of a

specific [CDS] or [CDS] analog." N.J.S.A. 2C:35-11(a)(3)(c).

      We also find without merit Evans' claims that Officer Dunphy's failure to

test the pills rendered the Board's decision arbitrary and capricious, and that its

decision violated his procedural due process rights. First, the Board's actions

comported with all procedural due process requirements. Evans was provided

notice of both revocation hearings, and the right to counsel. An impartial

hearing officer considered the parties' evidence, the applicable law, and issued




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                                       10
a thorough written decision, which was reviewed by a separate panel and then

the Board.

      Second, throughout the administrative proceedings, the hearing officer,

panel, and the Board thoroughly considered, and ultimately rejected, all of

Evans' factual and legal arguments. In view of our deferential standard of

review, especially given the hearing officer's opportunity to assess the live

testimony of Officer Dunphy, we accept the Board's factual findings and affirm

the administrative conviction.

      To the extent we have not addressed any of Evans' remaining arguments

it is because we conclude they are without sufficient merit to warrant discussion

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

      Affirmed.




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