Basim Hobson v. New Jersey State Parole Board
435 N.J. Super. 377
| N.J. Super. Ct. App. Div. | 2014Background
- Hobson was serving a five-year mandatory parole supervision term under NERA after convictions for first-degree robbery; the Parole Board revoked his release and set a nine-month future eligibility date following alleged violations on October 5, 2011.
- Parole officers encountered Hobson on the street, smelled alcohol, seized a clear bottle with red liquid, and had Hobson sign an "ADMISSION OF CDS/ALCOHOL USE" form in which he wrote that a friend gave him two shots of rum.
- Officers also recovered a plastic bag containing several smaller bags of a green vegetative substance from Hobson’s coat pocket; the substance and any photographic evidence were not produced at the hearing and had not been tested in the record.
- The hearing officer found Hobson violated (1) a general condition prohibiting use/possession/distribution of CDS (including imitation CDS) and (2) a special condition prohibiting alcohol use; the Panel and full Board adopted the recommendation and revoked Hobson’s release.
- The Appellate Division concluded the record lacked clear and convincing evidence the seized substance was marijuana or an imitation CDS, but did find clear and convincing evidence Hobson consumed alcohol (based on officers’ testimony and the signed admission).
- The court held revocation requires proof that the parolee "seriously or persistently" violated conditions; the Board failed to articulate how Hobson’s single instance of drinking met that statutory standard, so revocation was reversed and remanded.
Issues
| Issue | Hobson's Argument | Parole Board's Argument | Held |
|---|---|---|---|
| Whether evidence proved possession of a controlled dangerous substance (marijuana) by clear and convincing evidence | Hobson denied possession; no testing, no photos, and officers gave only lay descriptions | Board relied on officers' testimony that green vegetative substance was seized from Hobson | Reversed — record lacked clear and convincing evidence the substance was marijuana |
| Whether evidence proved possession of an "imitation" CDS under N.J.S.A. 2C:35-11 | Hobson argued absence of proof the packaging or appearance would lead a reasonable person to believe it was CDS | Board relied on officer's statement that it was "packaged as CDS" without comparison or detail | Reversed — testimony insufficient to prove imitation CDS (prima facie packaging factor not shown) |
| Whether Hobson admitted or otherwise consumed alcohol in violation of special condition | Hobson said he did not drink; wrote that friend gave him two shots and testified he did not consume them | Officers testified they smelled alcohol and said Hobson admitted drinking; Hobson signed admission form | Held — affirmed that Hobson consumed alcohol by clear and convincing evidence (officers' testimony + signed form) |
| Whether the single alcohol use warranted revocation under the statutory standard that parolee "seriously or persistently violated" conditions | Hobson argued one isolated, mitigated incident and his strong post-release record do not meet "seriously or persistently" | Board concluded revocation was desirable but did not explain how the statutory standard was met | Reversed and remanded — single instance of two shots, given Hobson's record, did not meet "seriously" standard; Board must remand and, if proceeding, fully articulate reasons if revocation is sought |
Key Cases Cited
- In re Perskie, 207 N.J. 275 (discusses the "clear and convincing" standard)
- In re Purrazzella, 134 N.J. 228 (definition and application of elevated evidentiary standards)
- Close v. Kordulak Bros., 44 N.J. 589 (standard for reviewing agency factfindings)
- State v. Johnson, 42 N.J. 146 (review scope of agency credibility determinations)
- In re Taylor, 158 N.J. 644 (deference to agency decisions unless arbitrary or capricious)
- Bailey v. Bd. of Review, 339 N.J. Super. 29 (need for reasoned administrative findings)
- N.J. Bell Tel. Co. v. Communications Workers of America, 5 N.J. 354 (administrative conclusions must be supported and expressed with sufficient definiteness)
- Jamgochian v. N.J. State Parole Bd., 394 N.J. Super. 517 (importance of sworn testimony and cross-examination in parole-related administrative hearings)