Opinion
DOCKET NO. A-4518-10T1
06-14-2012
GEORGE ENG, Appellant, v. NEW JERSEY STATE PAROLE BOARD, Respondent.
George Eng, appellant pro se. Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Carchman.
On appeal from the New Jersey State Parole Board.
George Eng, appellant pro se.
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief). PER CURIAM
Appellant George Eng, an inmate at South Woods State Prison, appeals from a final decision of respondent New Jersey State Parole Board (the Board), revoking his parole and imposing a fifty-six month Future Eligibility Term (FET). We affirm.
These are the relevant facts. In 1967, appellant was convicted of murder and sentenced to a term of imprisonment of twenty to twenty-five years. The conviction derived from appellant's participation in an attempted robbery of an "illegal gambling operation," during which he fatally shot a fleeing patron. He was paroled in 1976 and agreed to comply with various conditions of parole established by the Board.
His parole was short-lived. In February 1977, he was arrested for a murder that occurred in New York City in January 1977. Appellant was sentenced in New York to a term of twenty-five years to life imprisonment, and the Board issued a parole violation warrant, based on appellant's involvement in this offense. From 1977 until his return to New Jersey as a result of the parole violation warrant and detainer, appellant served his sentence for his murder conviction in New York.
While incarcerated in New York, appellant pleaded guilty to other outstanding New Jersey charges and was sentenced to various terms of imprisonment, which ran concurrent to the New York sentence that he was then serving.
In April 2010, appellant was paroled on his New York sentence and was returned to New Jersey as a result of his violation of the New Jersey parole. Following a revocation hearing, appellant admitted his parole violation, and the parole hearing officer made a finding of guilt.
At the hearing, appellant urged that during his extended incarceration, he had overcome his addiction and had been drug-free for thirty-three years. He also noted that he had obtained an Associate's degree and a Bachelor's degree and was working towards a Master's degree. He described the various programs that he had completed, as well as the work that he had performed in helping other inmates to better themselves. Finally, he expressed remorse for committing the two murders.
In concluding that the proofs supported a parole violation by clear and convincing evidence, the hearing officer recommended that the Board consider an FET "at the lower end of the range." A Board panel adopted the hearing officer's recommendation and, consistent with N.J.A.C. 10A:71-7.17B(e) and (f), imposed a fifty-six month FET, representing the shortest FET permitted by the regulation. Appellant appealed to the full Board, which affirmed the panel's decision. This appeal followed.
On appeal, appellant urges that the proof of his rehabilitation precludes a finding of any likelihood that he would commit another crime. He does acknowledge, however, that "he violated his parole by committing the crime of killing a man in New York [S]tate and attempting to escape in 1979."
Critical to our analysis is our standard of review of the parole revocation hearing and the Board's findings. It is well established that judicial review of parole determinations is limited to an evaluation of whether the Board acted arbitrarily or abused its discretion in rendering its decisions. In conducting this limited review, courts have accorded agency actions presumptions of validity and reasonableness, In re Vey, 272 N.J. Super. 199, 205 (App. Div.), aff'd, 135 N.J. 306 (1993), and the burden is on the challenging party to show that the Board's actions were unreasonable. Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304-05 (App. Div.), certif. denied, 135 N.J. 469 (1993).
A reviewing court is to review the record and determine whether the agency's findings could reasonably have been reached on the credible evidence in the record. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).
Before returning appellant to custody for his violation of the conditions of his parole, N.J.S.A. 30:4-123.60(b), the Board conducted a hearing, wherein appellant had the burden to establish, by clear and convincing evidence, why he should not be returned to custody. N.J.S.A. 30:4-123.60(c).
Unlike most parole actions, which are based on a preponderance of the evidence, revocations of parole must be supported by clear and convincing evidence in the record.
N.J.A.C. 10A:71-7.12(c)(1); 7.15(c). "Clear and convincing evidence" is that
upon which the trier of fact can rest "a firm belief or conviction as to the truth of the allegations sought to be established." Matter of Purrazzella, 134 N.J. 228, 240 [] (1993). It must be "so clear, direct and weighty and convincing as to enable either a judge or jury to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue." Matter of Seaman, 133 N.J. 67, 74 [] (1993).In the present matter, the clear and convincing evidence in the record established that [appellant] had seriously and persistently violated the conditions of his parole. While on parole, [appellant] was required to obey all laws and ordinances . . . . At the revocation hearing, it was demonstrated by clear and convincing evidence that [appellant] violated this condition . . . . Specifically, [appellant] while on parole, was found guilty of [m]urder in New York and [a]ttempted [e]scape in New Jersey[,] and [appellant] admitted his guilt to these crimes. . . . Thus, the hearing officer correctly concluded that [appellant] seriously and persistently violated the conditions of his parole by failing to obey all laws and ordinances.
[In re Registrant R.F., 317 N.J. Super. 379, 384 (App. Div. 1998)].
Therefore, the decision to revoke [appellant's] parole and direct that he serve a fifty-six-month FET was not arbitrary or capricious, but was supported by clear and convincing evidence in the record.
We have carefully reviewed appellant's additional arguments and conclude that they are without merit. R. 2:11-3(e)(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION