SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-3907- 21
NEW JERSEY STATE PAROLE BOARD, Respondent,

v. JOSHUA BURTON, Appellant.

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Submitted May 7, 2024

– Decided May 14, 2024 Before Judges Puglisi and Haas. On appeal from the New Jersey State Parole Board. Fernandez Garcia, LLC, attorneys for appellant (Michael Garcia, of counsel and on the brief). Matthew J. Platkin, Attorney General, attorney for respondent (Janet Greenberg Cohen, Assistant Attorn ey General, of counsel; Christopher C. Josephson, Depu ty Attorney General, on the brief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 3907

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Appellant Joshua Burton appeals from the June 29, 2022 State Parole Board (Board) final agency decision revoking his pa role and establishing a fourteen-month future eligibility term (FET). We a ffirm. On September 14, 2012, Burton attempted to sexuall y assault two women in separate attacks in a public library. He follow ed one of the women into a bathroom before attacking her. Burton ripped the w oman's shirt, pulled down her pants, and attempted to anally penetrate her. Burton f led the bathroom after another woman entered and began yelling at him to s top the attack. That same day, Burton accosted another woman in a library stairway. Burton grabbed the woman's breast, threatened to ki ll her, and began to pull her up the stairs. The woman was able to break free. Someone cal led 9-1-1 and the police arrest ed Burton near the library. In June 2013, Burton pled guilty to one count of s econd-degree sexual assault and one count of fourth-degree criminal sex ual contact. The trial court sentenced Burton to an aggregate five-year term in prison and Parole Supervision for Life (PSL). As part of his PSL, Burton was subject to a number of conditions upon his release from prison, including conditions that requ ired him to : reside at a residence approved by his parole officer; obtain pe rmission from his parole3 A- 3907

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officer prior to any change in residence; participa te in and successfully complete an appropriate community counseling or treatment pr ogram as directed by his parole officer; successfully complete the Electroni c Monitoring Program (EMP); and participate in and successfully complete the Community Resource Center (CRC) program. On January 28, 2021, Burton was discharged from hi s outpatient drug treatment program after he was observed masturbatin g during a Zoom counseling session. On March 5, 2021, Burton's CRC program discharged him due to his repeated noncompliance with program rule s. While on EMP, Burton violated his curfew and failed to successfully comp lete the program's requirements. Burton was placed in a residential program, which h e completed on June 10, 2021. The next day, Burton's parole officer referred him to the Restoration Shelter (Shelter) in Newark. The Shelter terminate d him from the program on June 17, 2021, after he was seen entering the woman 's bathroom and remaining there, which echoed what he had done in his origina l offense. After his discharge, Burton's whereabouts were unknown for th ree days and he failed to obtain permission from his parole officer prior to changing his address.4 A- 3907

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Burton was thereafter served with a Notice of Prob able Cause Hearing, which advised him of the parole conditions he had v iolated and his rights at the hearing. Burton elected to waive the probable caus e hearing and the matter proceeded as a final parole revocation hearing. During the revocation hearing, the hearing officer heard testimony from Parole Officer Barragan, Lorena Inestroza, and Shaw n Favors. Barragan provided a summary of Burton's parole supervision h istory, including details and documents related to each violation Burton comm itted. Inestroza, who was a counselor at the Shelter, testified regarding the June 17, 2021 incident in the women's bathroom. Favors, who was a counselor at the CRC p rogram, testified regarding the January 28, 2021 incident where Burto n was observed masturbating during a Zoom counseling session. 1 At the conclusion of the hearing, the hearing offi cer found by clear and convincing evidence that Burton violated the condit ions of PSL, and recommended that Burton's parole be revoked with th e imposition of a fourteenmonth FET. On January 19, 2022, a two-member Board Panel revie wed the

1 Favors was not present during the Zoom call, but re viewed a video provided by a person who was present and confirmed that Burton was the man seen in the video.5 A- 3907

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record and concurred with the hearing officer's det ermination. The panel revoked Burton's parole and imposed a fourteen-mont h FET. Burton filed an administrative appeal of this deci sion and, on June 29, 2022, the full Board affirmed the panel's determina tion. This appeal followed. On appeal, Burton argues the Board's decision was not su pported by clear and convincing evidence and that the hearing office r inappropriately allowed hearsay evidence into the record. We have considered these contentions in light of the record and the applicable legal principles a nd conclude they are without sufficient merit to warrant extended discussion in a written opinion. See R. 2:11 -3(e)(1)(D) and (E). We add the following comments

. "Parole Board decisions are highly 'individualized discretionary appraisals.'" Trantino v. N.J. State Parole Bd. (" Trantino VI ") , 166 N.J. 113, 173 (2001) (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)). As such, we give great deference to the B oard's "expertise in the specialized area of parole supervision." J.I. v. N .J. State Parole Bd., 228 N.J. 204, 230 (2017). In reviewing a final decision of the Board, this co urt considers: (1) whether the Board's action is consistent with the a pplicable law; (2) whether there is substantial credible evidence in the recor d as a whole to support its6 A- 3907

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findings; and (3) whether in applying the law to th e facts, the Board erroneously reached a conclusion that could not have been reaso nably made based on the relevant facts. Trantino v. N.J. State Parole Bd. (" Trantino IV"), 154 N.J. 19, 24 (1998). Consequently, where the Board has appli ed the correct legal standard, our role is limited to determining whethe r the decision was arbitrary, capricious, or unreasonable. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002). "The burden of showing that an action was arbitrary, unreasonable or capricious rests upon the appellant ." Ibid. Applying these principles, we are satisfied that the Board's revocation of Burton's parole and the imposition of a fourteen-mo nth FET was supported by sufficient credible evidence in the record and was neither arbitrary, capricious, or unreasonable. Contrary to Burton's contentions on appeal, there was ample

non -hearsay evidence in the record to support the Boar d's findings and conclusions. This evidence included the video of t he Zoom counseling session; the discharge documents from the programs Burton un deniably failed to complete; Inestroza's testimony about the incident in the Shelter bathroom, and7 A- 3907

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Barragan's testimony about Burton's failure to keep him apprised of his whereabouts. 2 Accordingly, we affirm substantially for the reaso ns stated by the Board in its June 29, 2022 final decision. Affirmed.

2 Burton also complains that Favors was permitted to testify even though he was not on the Board's original witness list. However, the hearing officer offered to adjourn the hearing to allow Burton's counsel addit ional preparation time if needed, and Burton's counsel declined the offer. Therefore, the Board correctly rejected Burton's contention on this point.