Opinion
DOCKET NO. A-4922-12T3
06-29-2015
TERRENCE BRADLEY, Appellant, v. NEW JERSEY STATE PAROLE BOARD, Defendant.
Terrence Bradley, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Andrew J. Sarrol, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hayden and Sumners. On appeal from the New Jersey State Parole Board. Terrence Bradley, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Andrew J. Sarrol, Deputy Attorney General, on the brief). PER CURIAM
The New Jersey State Parole Board (the Board) revoked Terrance Bradley's mandatory parole supervision and imposed a twelve-month future eligibility term. Bradley's administrative appeal of that decision was denied as untimely filed without good cause. He raises the following points on appeal:
Based upon our review of the record and applicable law, we affirm.
POINT I
THE RESPONDENT'S DECISION TO REJECT THE APPELLANT'S ADMINISTRATIVE APPEAL WAS ARBITRARY, CAPRICIOUS, AND UNREASONABLE. (NOT RAISED BELOW)
POINT II
THE MSV #7 VIOLATION IS MOOT BECAUSE THE APPELLANT WAS ACQUITTED OF THE CRIMINAL CHARGES THAT THE VIOLATION IS BASED ON, AND THE RESPONDENT'S DECISION TO REVOKE HIS PAROLE FOR THIS ALLEGED VIOLATION WARRANTS A REVERSAL. (NOT RAISED BELOW)
POINT III
THE RESPONDENT'S DECISION TO REVOKE BRADLEY'S PAROLE FOR THIS MSV SPECIAL CONDITION VIOLATION, IS ARBITRARY, CAPRICIOUS, AND UNREASONABLE FOR THEY DID NOT FAIRLY CONSIDER THE EVIDENCE, AND RELIED ON FINDINGS THAT ARE UNSUPPORTED BY THE WHOLE RECORD OR DID NOT WARRANT THE REVOCATION OF BRADLEY'S PAROLE, AND BECAUSE THE RECORD ESTABLISHES IT WAS INCIDENTAL CONTACT AND NOTHING MORE[,] A REVERSAL IS WARRANTED FOR HIS PAROLE WAS ERRONEOUSLY REVOKED BY THE RESPONDENT[]. (NOT RAISED BELOW)
It is unclear, but, with the exception of Point I, Bradley's apparent reference to the Points "NOT BEING RAISED BELOW" may be a reference to the fact that the Board did not address the merits of his arguments because his administrative appeal was dismissed on the procedural ground as being untimely.
I
We discern the following facts and procedural history from the record. On September 4, 2010, Bradley was paroled from a 1998 conviction for aggravated manslaughter, with supervision to continue for five years. On May 8, 2011, he was arrested in the city of Newark and charged with possession of a loaded firearm. As a result, Bradley received notice of a hearing to determine whether there was probable cause to believe that he committed a parole violation for possession of a weapon and having contact with a known gang member.
On July 14, 2011, a probable cause hearing resulted in the Hearing Officer's recommendation that Bradley violated his parole as charged. On August 17, 2011, a two-member Board panel adopted the recommendation, with Bradley to remain in State custody subject to a revocation hearing.
On July 26, 2011, Bradley was indicted for second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5B, fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3D, second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7B, and fourth-degree obstruction of the administration of law, N.J.S.A. 2C:29-1. Less than two years later, on April 5, 2013, a jury acquitted him of the certain persons charge, and the prosecutor dismissed all the other charges.
Almost a year later, a final violation hearing conducted on June 7, 2012, resulted in the Hearing Officer's recommendation to revoke Bradley's mandatory parole supervision and imposition of a twelve-month future eligibility term. On July 11, 2012, a two-member Board panel agreed with the recommendation. According to the Board, Bradley received notice of the panel's decision on July 23, 2012. Thus, his ninety days to appeal the decision to the Board expired on October 23, 2012. See N.J.A.C. 10A:71-4.2(a).
Bradley, however, contends that he was remanded to county jail from August 2, 2012 through August 6, 2012, and did not receive notice of the Board panel's decision until August 9, 2012. Thus, he argues that his appeal was due November 9, 2012. Even so, Bradley did not file an appeal until December 11, 2012.
On December 12, 2012, the Board sent Bradley a letter advising him that his appeal was untimely, and according to Board policy his appeal could only be accepted upon explanation of good cause for the delay. Bradley replied that his appeal was delayed for good cause. Specifically, Bradley claimed that he did not receive the Board panel's decision until August 9, 2012, following his return from court remand. He then contacted his counsel, who Bradley asserted never received a copy of the decision. Bradley contended further delay was caused by his difficulty in getting access to the law library and the inmate paralegals due to other inmates' usage, and a prison lockdown due the state of emergency caused by Hurricane Sandy.
It is unclear how the Board's alleged failure to send Bradley's counsel the panel's decision contributed to a delay in filing an appeal. Bradley appealed pro se, and does not assert that he represented himself because his counsel did not receive the decision. Yet, the Board contends it mailed a copy of the decision to counsel. There is no certification from counsel to substantiate Bradley's claim that counsel did not receive the decision.
On January 23, 2013, the Board determined that Bradley's explanation for his late appeal did not establish good cause and his appeal was not accepted. Thus, Bradley's administrative remedies were exhausted and no further action was taken by the Board. This appeal followed.
Based upon the Board's position that Bradley received notice of the panel's decision on July 23, 2012, the Board determined that his appeal was one month and eighteen days out of time.
II
Our review of agency action is limited. "Ordinarily, an appellate court will reverse the decision of the administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) (citation omitted). Substantial evidence needed to sustain guilt of an infraction is "such evidence [that] a reasonable mind might accept as adequate to support a conclusion." In re Pub. Serv. Elec. & Gas, 35 N.J. 358, 376 (1961)(citations omitted). We are obligated to give deference to credibility determinations made by the fact finder. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965); Doering v. Bd. of Review, 203 N.J. Super. 241, 245 (App. Div. 1985). While we do owe deference to an administrative agency, we do not rubber stamp its decisions. In re Taylor, 158 N.J. 644, 657 (1999). When the administrative agency's findings of fact are supported by adequate, substantial, and credible evidence, they are binding on appeal. In re Pub. Serv. Elec. & Gas, supra, 35 N.J. at 376 (citations omitted).
In accordance with N.J.A.C. 10A:71-4.2(a), appeals of the Board's panel decision to the full Board must be filed within ninety days of receipt of the decision. When Bradley did not file his appeal within the ninety day period, he was advised that pursuant to Board policy his late appeal could be considered if he showed good cause why there was a delay in its filing.
Initially, we must note that the record does not disclose the source of the Board policy that allows for acceptance of a late appeal upon a showing of good cause. While we find it equitable that the Board provides such allowance, the policy does not define what constitutes good cause. Nor is there any precedent to guide us regarding what constitutes good cause to overcome untimely appeals to the Board. Nevertheless, we find some guidance in an interpretation of one of our court rules and another state agency's regulation definition of good cause.
In the context of reinstating a civil complaint administratively dismissed for failure to prosecute pursuant to Rule 1:13-7(a), good cause was considered "an amorphous term, that is, it is difficult of precise delineation. Its application requires the exercise of sound discretion in light of the facts and circumstances of the particular case considered in the context of the purposes of the Court Rule being applied." Ghandi v. Cespedes, 390 N.J. Super. 193, 196 (App. Div. 2007) (quoting Delaware Valley Wholesale Florist, Inc. v. Addalia, 349 N.J. Super. 228, 232 (App. Div. 2002)).
To guide what circumstances constitute good cause for an untimely appeal of challenging the denial of unemployment compensation benefits, the Department of Labor adopted a regulation. It provides:
A late appeal shall be considered on its merits if it is determined that the appeal was delayed for good cause. Good cause exists in circumstances where it is shown that:
1. The delay in filing the appeal was due to circumstances beyond the control of the appellant; or
2. The appellant delayed filing the appeal for circumstances which could not have been reasonably foreseen or prevented.
[N.J.A.C. 12:20-4.1(h).]
Applying these principles convinces us that the record supports the Board's determination that Bradley failed to establish good cause for his untimely appeal. Bradley's short remand to county jail did not result in any significant absence from the law library resources at the state prison. His bald allegation that he had limited access to the law library when he returned to the prison is not persuasive. Even accepting his contention that he did not receive notice of the Board panel's decision until August 9, this gave him the bulk of August, the entire month of September and the majority of October to prepare his appeal. His contention that Hurricane Sandy in late October/early November prevented him from completing his appeal is undermined by the fact that his appeal was not filed until over a month later, on December 11. As such, Bradley's delay was not due to circumstances beyond his control. Based on the record before us, Bradley had sufficient opportunity to submit his appeal on a timely basis. Thus, we conclude the Board did not act arbitrary, capricious or unreasonable in finding Bradley did not show good cause in filing his appeal late.
The record fails to disclose how many days Southern State Prison was on lock down due to Hurricane Sandy. --------
Lastly, Bradley's appeal argues the merits of the Board panel's decision to revoke his parole. We are satisfied with the Board's action to reject Bradley's appeal on a procedural ground, and will not address the merits, as there is no record for us to consider the Board's assessment of the merits of his appeal. Thus, we will not take original jurisdiction to determine this matter. R. 2:10-5; See Price v. Himeji, LLC, 214 N.J. 263, 294-95 (2013) (exercise of original jurisdiction is discouraged when the record is inadequate to permit appellate review).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION