Gerardo v. New Jersey State Parole Bd.

• Decision Date: 09 December 1987
• Citation: 534 A.2d 1037,221 N.J.Super. 442
• Parties: Andrew GERARDO, Plaintiff-Appellant, v. NEW JERSEY STATE PAROLE BOARD, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 442

221 N.J.Super. 442

534 A.2d 1037

Andrew GERARDO, Plaintiff-Appellant, v. NEW JERSEY STATE PAROLE BOARD, Defendant-Respondent.

Superior Court of New Jersey,

Appellate Division.

Argued Nov. 10, 1987.

Decided Dec. 9, 1987.

Angelo R. Bianchi, Nutley, for plaintiff-appellant (Angelo R. Bianchi, on the brief).

Stuart J. Lieberman, Deputy Atty. Gen., for defendant-respondent (W. Cary Edwards, Atty. Gen. of New Jersey, attorney; Michael R. Clancy, Deputy Atty. Gen., of counsel).

Before Judges PRESSLER, MUIR Jr. and CONLEY.

CONLEY, J.S.C. temporarily assigned.

This is an appeal from a parole rescission order by the State Parole Board based on its finding of substantial likelihood appellant would commit a crime if paroled.

Appellant is serving a 7 1/2 to 11 year sentence for conspiracy, engaging in a lottery business and bookmaking. He began serving his sentence in 1984. An initial parole hearing was held in June 1986. The matter was referred to the Adult Panel of the Parole Board to consider his involvement in organized crime and criminal activity. In July 1986 he met with the Panel following which he was approved for parole, effective October 7, 1986. On September 25, 1986, however, he was arrested on a criminal complaint alleging conspiracy and racketeering. On October 1, 1986, an administrative hold was placed on his release pending a hearing to determine whether the charges constituted good cause to reconsider the parole release. In November an inquiry was made of appellant's counsel concerning scheduling of the hearing. He advised he would not be available December 4 or 5 since he had a previously scheduled trial with twelve witnesses.

A hearing was held on December 12, 1986, 65 days after the release date. The only witness was a State Police detective, an expert in organized crime assigned to the State Police Organized Crime and Racketeering Task Force. He testified concerning an investigation of criminal activity in northern New Jersey and certain intercepted prison conversations which occurred on March 12, 1986 between appellant and another individual, Ralph Vicarro, suspected to be involved in the criminal activity. Neither tape nor transcript of the critical conversations was presented. ¹ The detective's testimony concerning the March 12 conversations was predominently conclusory and interpretative. It was his opinion that the conversations demonstrated appellant's activity with others in loan sharking and gambling. Although the hearing officer repeatedly expressed a need for substantiation of conclusions and surmise, the actual words of the critical conversations were not recounted. However, based upon the interpretive testimony of the detective, the Board concluded it was likely appellant would continue with loan sharking and gambling activities upon release. His parole release was rescinded and he was given a 26-month future eligibility term.

On appeal appellant argues he was denied due process because the hearing occurred beyond the 60 day statutory time limit, that the Board's decision was arbitrary because it was based solely on hearsay and that he was improperly denied discovery of the transcript of the critical conversations.

We find the discovery contention to be clearly without merit. R. 2:11-3(e)(1)(E). The simple answer is that appellant received by way of the detective's 140-page arrest warrant affidavit all that he was entitled to. Since neither the transcript nor the content of the conversations was "considered at the hearing", N.J.A.C. 10A:71-5.7(a), appellant was not entitled to such discovery. And, for the following reasons, we reject the due process and hearsay contentions. But our concern regarding the reliability of the State's evidence leads us to remand for further proceedings.

We begin by recognizing that there is no constitutional right to parole. Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7, 99 S.Ct. 2100, 2104, 60 L.Ed.2d 668, 675 (1979); N.J. Parole Bd. v. Byrne, 93 N.J. 192, 208, 460 A.2d 103 (1983). See Jago v. Van Curen, 454 U.S. 14, 102 S.Ct. 31, 70 L.Ed.2d 13 (1981) (parole rescission without a hearing where none is required by statute does not violate due process). While inmates are statutorily entitled to be released upon parole eligibility, the Parole Board may deny or delay parole and, prior to actual release, may rescind an initial parole determination. It may do so if information is provided to it either through the preparole report prepared pursuant to N.J.S.A. 30:4-123.54 or through a hearing held pursuant to N.J.S.A. 30:4-123.55(c) which demonstrates by a preponderance of the evidence that there is a substantial likelihood the inmate will commit a crime if released on parole. N.J.S.A. 30:4-123.53; N.J.S.A. 30:4-123.56(c); N.J.S.A. 30:4-123.58(c). But it can no longer be subject to question that the expectation of parole eligibility, however qualified it might be, created by the Parole Act is a liberty interest of the inmate entitled to be protected from arbitrary governmental action by the due process clause of the Fourteenth Amendment. N.J. Parole Bd. v. Byrne, supra, 93 N.J. at 206, 208, 460 A.2d 103. See also N.J. State Parole Bd. v. Woupes, 184 N.J.Super. 533, 536-537, 446 A.2d 1214 (App.Div.1981); O'Neal v. N.J. State Parole Bd., 149 N.J.Super. 174, 184-185, 373 A.2d 657 (App.Div.1977), app. dism. 75 N.J. 590, 384 A.2d 821 (1977). Cf. Jenkins v. Fauver, 108 N.J. 239, 246-250, 528 A.2d 563 (1987).

In this respect and pertinent to this appeal, N.J.S.A. 30:4-123.58(c) provides:

"If information comes to the attention of the appropriate board panel which bears upon the likelihood that the inmate will commit a crime but which was not considered pursuant to [ N.J.S.A. 30:4-123.55 to N.J.S.A. 30:4-123.57], the board panel may suspend any parole release date ... for a period of not more than 60 days in order to conduct a rescission hearing to determine whether parole release on the original parole release date should be denied or delayed." (emphasis added).

In implementing this statutory entitlement to a hearing, the Board has promulgated N.J.A.C. 10A:71-5.6 which provides:

(a) Upon the receipt of additional relevant information which may form a basis for parole rescission, the Board panel shall schedule a rescission hearing before the Board panel or a hearing officer.

(b) The purpose of the rescission hearing shall be to determine whether, due to circumstances of an institutional infraction committed by such inmate and/or due to circumstances of the inmate's case which were not previously considered, there is good cause for the Board panel to reconsider the prior determination certifying parole release.

(c) Upon the initiation of the rescission hearing process, the parole release date shall be suspended for a period of not more than 60 days, and within said time period, a rescission hearing shall be conducted unless the inmate requests a postponement of the rescission hearing.

(d) If the inmate requests a postponement of the rescission hearing, the postponement shall be granted by the hearing officer or Board panel. Such request shall be made in writing and shall be made a part of the inmate's case record.

Thus, while a parole release date may be rescinded, both the statute and the Parole Board's own regulation provide for a hearing at which the evidence bearing upon rescission is to be presented. The hearing is to be held within 60 days of the release date.

Appellant contends the 60 days is mandatory and is part of his due process rights arising from his protected liberty interest. He thus claims that a five-day infringement upon that right requires automatic release regardless of whether there is a preponderance of evidence demonstrating likelihood of criminal activity. It is, as characterized in the context of an untimely revocation hearing, a "draconian" remedy. Smith v. U.S., 577 F.2d 1025, 1028 (5th Cir.1978). We reject it.

As we have noted, there is no question but that due process applies to parole eligibility decisions. However, parole is not a part of criminal prosecution and thus the full panoply of rights accorded a criminal defendant is not applicable. Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484, 494 (1972). See also Greenholtz v. Nebraska Penal Inmates, supra, 442 U.S. at 14, 99 S.Ct. at 2107, 60 L.Ed.2d at 679-680. It has consistently been recognized that the concept of due process is elusive and flexible with the procedural protections required depending upon the particular circumstances involved. Hewitt v. Helms, 459 U.S. 460, 472, 103 S.Ct. 864, 871, 74 L.Ed.2d 675, 688 (1983); N.J. Parole Bd. v. Byrne, supra, 93 N.J. at 209, 460 A.2d 103. Thus, what process is due in any given case requires a weighing of the particular governmental function and the individual interest affected. N.J. Parole Bd. v. Byrne, supra, 93 N.J. at 209, 460 A.2d 103.

Important, too, in determining what procedures must accompany governmental action is consideration of the primary purpose for due process protection. It has been said that "[t]he touchstone of Due Process is freedom from arbitrary governmental action." Ponte v. Real, 471 U.S. 491, 495, 105 S.Ct. 2192, 2195, 85 L.Ed.2d 553, 558 (1985). As explained in Greenholtz v. Nebraska Penal Inmates, supra, 442 U.S. at 13, 99 S.Ct. at 2106, 60 L.Ed.2d at 679:

"... The function of legal process, as that concept is embodied in the Constitution, and in the realm of fact finding, is to minimize the risk of erroneous decisions. Because of the broad spectrum of concerns to which the term must apply, flexibility is necessary to gear the process to the particular need; the quantum and quality of the process due in a particular situation depend upon the need to serve the purpose of minimizing the risk of error ..." (emphasis added).

See also N.J. Parole Bd. v. Byrne, supra, 93 N.J. at 211, 460 A.2d 103.

Thus, in the context of initial parole eligibility...