NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0681-12T3

BASIM HOBSON,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

________________________________

Submitted April 2, 2014 – Decided

Before Judges Grall, Nugent and Accurso.

On appeal from the New Jersey State Parole 

Board.

Destribats Campbell, LLC, attorneys for 

appellant (Raymond C. Staub, on the brief).

John J. Hoffman, Acting Attorney General, 

attorney for respondent (Lisa A. Puglisi, 

Assistant Attorney General, of counsel; 

Christopher C. Josephson, Deputy Attorney 

General, on the brief).

The opinion of the court was delivered by 

GRALL, P.J.A.D.

Basim Hobson appeals from a final decision of the Parole 

Board (Board) revoking his release status on a mandatory fiveyear term of parole supervision imposed pursuant to the No Early 

APPROVED FOR PUBLICATION

April 29, 2014

APPELLATE DIVISION

April 29, 2014
2 A-0681-12T3

Release Act (NERA), N.J.S.A. 2C:43-7.2, and setting a nine-month 

future eligibility term.1 Hobson's release was revoked for 

violating two conditions imposed by the Board: general condition 

number 9, "to refrain from the use, possession or distribution 

of a controlled dangerous substance, controlled substance 

analog, or imitation controlled dangerous substance as defined 

in N.J.S.A. 2C:35-2 and N.J.S.A. 2C:35-11[,] as evidenced by 

[your] arrest in the City of Plainfield on 10/05/11 for 

[p]ossession of Marijuana/Hash under 50 Grams"; and one special 

condition, "refrain from the purchase, possession and use of any 

alcohol[,] as evidenced by [your] admission to the use of 

alcohol on 10/05/11."

The evidence was inadequate to support a finding that 

Hobson violated general condition number 9, and the evidence of 

the violation of the special condition and Hobson's record on 

parole was inadequate to support a finding that Hobson 

"seriously or persistently violated the conditions" of his 

 

1 Defendant was sentenced to one five-year term of mandatory 

parole supervision based on his guilty pleas to four counts of 

first-degree robbery, N.J.S.A. 2C:15-1, charged separately in 

99-01-306-I, 98-12-603-I, 99-02-155-Z and 99-05-276-A. His 

sentences are concurrent with one another and, consequently, so 

are his mandatory terms of NERA parole supervision. Cf. State 

v. Friedman, 209 N.J. 102, 120-22 (2012) (holding that where 

NERA sentences are consecutive, then the terms of NERA parole 

supervision are also consecutive). 
3 A-0681-12T3

release status, as required by N.J.S.A. 30:4-123.60(b) and 

N.J.S.A. 30:4-123.63(d). Accordingly, we reverse and vacate the 

revocation of Hobson's release status; affirm the Board's 

determination of violation of the special condition; and remand 

for reconsideration of any modification of the condition of 

Hobson's release warranted because of his violation of the 

special condition.

I

"A person who has been sentenced to a term of parole 

supervision and is on release status in the community pursuant 

to" N.J.S.A. 2C:43-7.2 is "subject to the provisions and 

conditions set by the appropriate [B]oard panel." N.J.S.A.

30:4-123.51b(a). That statute also gives the Board authority 

"to revoke the person's release status and return the person to 

custody for the remainder of the term or until it is determined, 

in accordance with regulations adopted by the [B]oard, that the 

person is again eligible for release . . . ." Ibid.

The Board must exercise its authority to revoke release 

status "in accordance with the procedures and standards" 

codified in N.J.S.A. 30:4-123.59 through N.J.S.A. 30:4-123.65. 

N.J.S.A. 30:4-123.51b(a). The statutory standards referenced 

permit revocation only on proof by clear and convincing evidence 

that the person "has seriously or persistently violated the 
4 A-0681-12T3

conditions," N.J.S.A. 30:4-123.60(b) and N.J.S.A. 30:4-

123.63(d), or that the person has been "convicted of a crime" 

while released, N.J.S.A. 30:4-123.60(c); see also N.J.A.C.

10A:71-7.12(c)(1)-(2).

The Legislature did not further define the type of conduct 

it intended to capture within the statutory standard —

"seriously or persistently violated." And the Board has not 

adopted a regulation to guide exercise of its expertise to 

distinguish cases in which parole should and should not be 

revoked. 

The Legislature also codified procedures for revocation 

that require the Board to afford persons facing revocation of 

release status significant procedural protections. In addition 

to requiring proof by clear and convincing evidence, the 

Legislature has mandated notice of the alleged violation, a 

probable cause hearing, and a subsequent revocation hearing, at 

which the parolee has a right to confront his or her accusers, 

testify, present evidence, subpoena witnesses and have counsel 

appointed. N.J.S.A. 30:4-123.62 to -123.63. 

Revocation hearings are conducted by a hearing officer, who 

must make a record and provide reasons for his or her 

recommendation to a two-member Panel of the Board in writing. 

N.J.S.A. 30:4-123.63. The hearing officer's written summary is 
5 A-0681-12T3

given to the two-member Panel and the parolee's attorney, who 

may file exceptions with the Panel within seven days. N.J.A.C.

10A:71-7.16. The Panel makes its decision after reviewing the 

hearing officer's summary, the exceptions and the record. 

N.J.S.A. 30:4-123.63(d), (e); N.J.A.C. 10A:71-7.16 to -7.17B. 

If the Panel revokes parole it must either establish a specific 

release date or a future eligibility date. N.J.S.A. 30:4-

123.63(d); N.J.S.A. 30:4-123.64; N.J.A.C. 10A:71-7.17B. The 

Panel also must issue a written decision stating its "particular 

reasons . . . and the facts relied upon," N.J.A.C. 10A:71-7.18. 

Where parole is revoked, the two-member Panel's decision is 

appealable to the Board on several grounds. Among the available 

grounds are the Panel's failure to consider material facts; its 

failure to document the clear and convincing evidence of serious 

or persistent violations; and its entry of a decision "contrary 

to written Board policy or procedure." N.J.A.C. 10A:71-

4.1(e)(1)-(3). Pursuant to Rule 2:2-3(a)(2), appeal to this 

court is from the agency's final decision. 

 II

The revocation hearing in this case was conducted by a 

hearing officer and a record of that hearing was made. N.J.S.A.
6 A-0681-12T3

30:4-123.63.2 Hobson's attorney cross-examined Hobson's 

accusers, Parole Officers Dunphy and Bene. Hobson also 

testified.3 

The evidence can be summarized as follows. Hobson was 

released to serve his five-year term of parole supervision at 

the expiration of his sentence of imprisonment on August 8, 

2009. Because of housing issues at the time of his release,

Hobson was placed in Logan Hall and transferred to Delaney Hall 

for an alleged threat to a counselor.

After leaving Delaney Hall, Hobson had no difficulty on 

parole until October 5, 2011. He completed a program at Perth 

Amboy Community Resource Center on December 11, 2009, and found 

employment before the end of that year. Officer Dunphy was 

Hobson's parole officer, and by his account Hobson had been 

employed for most of the period between December 2009 and the 

 

2 In this case there was no probable cause hearing, because 

Hobson had requested an adjournment of the probable cause 

hearing and opted to proceed with the final hearing on the rescheduled date. 

3 The transcript does not reflect that any of the witnesses took 

an oath before testifying, and the Board's rules do not 

expressly require that witnesses be sworn. But see Jamgochian 

v. N.J. State Parole Bd., 394 N.J. Super. 517, 543 (App. Div. 

2007) (discussing the importance of sworn testimony and crossexamination in a hearing involving disputed allegations 

supporting imposition of a curfew as an additional condition of 

the person's community supervision), aff'd as modified, 196 N.J.

222 (2008). Hobson does not seek reversal on that ground. 
7 A-0681-12T3

date of these violations. Hobson had not only maintained 

employment but had also passed all drug and alcohol screens. In 

addition, on Dunphy's numerous visits to Hobson's home, the 

officer had never seen any alcohol, drugs, or drug 

paraphernalia. 

At about 8:00 p.m. on October 5, 2011, Dunphy and Bene were 

patrolling in Plainfield. They saw Hobson walking down the 

sidewalk wearing sunglasses and a long, dark-colored coat and 

carrying a clear bottle that held a red liquid. They observed 

Hobson stop and look into a business fronting the street.

As Dunphy customarily does when he sees a parolee on the 

street, he stopped to talk to Hobson. He and Bene got out of 

their car and called Hobson by name. Hobson acknowledged them, 

but he continued to walk a bit before stopping. 

Dunphy took the bottle from Hobson's hand, spilled out the 

contents and discarded it. Neither officer knew what the red 

liquid was, but to them, Hobson appeared to be "intoxicated." 

Although the officers did not explain what made them think 

Hobson was drunk, they both detected the odor of alcohol. 

Consequently, Hobson was asked if he had been drinking. The 

officers claimed Hobson told them he had been, and, for that 

reason, Dunphy asked Hobson to sign a parole form entitled 

"ADMISSION OF CDS/ALCOHOL USE." On that form, Hobson wrote: "I 
8 A-0681-12T3

was with a friend who was drinking and he gave me 2 shots of 

rum." 

During Hobson's testimony at the hearing, he denied saying 

he was drunk or had been drinking. He said he told the officers 

the same thing that he wrote on the form — that a friend gave 

him rum. He further testified that he did not drink the rum, 

told his friend he did not want it and left it on his friend's 

kitchen counter. 

The officers also testified about the circumstances 

supporting the charge of drug possession. They found the 

substance they suspected to be marijuana after Hobson admitted 

drinking and as they were walking with Hobson toward their car. 

At that point, Hobson put his hand in his coat pocket. Dunphy 

placed his hand on Hobson's wrist and directed Hobson to take 

his hand from his pocket. As Hobson complied, Dunphy saw a 

plastic bag that contained several smaller bags of a "green 

vegetative substance," which Dunphy seized.

There was no evidence that the green vegetative substance 

the officers claimed to find was marijuana. Neither the 

substance nor a photograph of the evidence was produced at the 

hearing. 

Dunphy had filed a criminal complaint charging Hobson with 

possession of less than fifty grams of marijuana and gave the 
9 A-0681-12T3

evidence to the Plainfield police department. He did not, 

however, get a receipt for the evidence. Neither officer knew 

if the Plainfield police had the substance tested, and neither 

testified to detecting an odor of marijuana. Bene, however, 

testified that the substance was "packaged as CDS."

When the parole revocation hearing was held, Hobson had not 

been prosecuted. Hobson claimed that the charge had been 

downgraded and sent to the municipal court for disposition. In 

addition, Hobson denied possessing any green vegetative 

substance on October 5, 2011. 

Hobson also testified in mitigation. He described his 

activities, which at times included two jobs and caring for an 

infirm relative. He also discussed his plans to attend school, 

obtain a commercial driver's license and care for his son, who 

was born in June 2011.

Considering the foregoing evidence and Hobson's presentence 

reports prepared years ago, the hearing officer determined that 

there was clear and convincing evidence supporting the 

conclusion that Hobson violated the conditions as charged. With 

respect to the charge of alcohol consumption in violation of the 

special condition of Hobson's release, the hearing officer's 

finding rested on the admission form Hobson signed. As proof of 

the violation of the general condition pertinent to drug 
10 A-0681-12T3

possession, the hearing officer relied upon Bene's testimony

that the vegetative substance was "packaged as marijuana" and 

that the condition addressed "imitation CDS" as well as "CDS."

As previously noted, where revocation is based on violation 

of a condition of release, the statute requires proof that the 

parolee "has seriously or persistently violated the conditions 

of his parole." N.J.S.A. 30:4-123.60. The hearing officer did 

not provide any explanation for her conclusion that Hobson 

qualified for revocation under that standard. She considered 

Hobson's good record since his release from prison in August 

2009 as warranting a reduction of the presumptive date of his 

next parole eligibility.

The two-member Panel's decision does not address the 

statutory standard either. It simply states that the Panel 

"reviewed" the hearing officer's summary, "concur[red] with the 

findings of fact," and "adopted the recommendation" of the 

hearing officer on "disposition." 

The Board also failed to explain how the evidence in this 

case established that Hobson had "seriously or persistently 

violated the conditions of his parole." N.J.S.A. 30:4-123.60. 

The Board summarized the objections Hobson's attorney raised on 

the administrative appeal, noted that the attorney had raised 

the same arguments before the Panel and, despite the Panel's 
11 A-0681-12T3

cursory written decision, the Board concluded that the Panel 

considered those objections and the entire record in making its 

decision. 

Without further explanation, the full Board stated its 

conclusions: 

The full Board finds that the Panel reviewed 

and considered the full circumstances 

surrounding your client's violations of 

mandatory parole supervision as well as each 

of the mitigating factors mentioned in the 

hearing officer's summary. The full Board 

finds no evidence to support your claim that 

the Panel failed to consider material facts 

or failed to demonstrate that revocation is 

desirable. The full Board concurs with the 

Panel's determination that there is clear 

and convincing evidence that your client 

seriously violated parole conditions and 

that revocation is desirable. Therefore, 

the full Board finds your contentions to be 

without merit.

. . . .

Finally, the full Board finds that, other 

than your own interpretation of information 

that is already part of the record, you have 

not identified any written Board policy or 

procedure to which the Panel's decision is 

contrary. Therefore, the Board finds your 

contention to be without merit.

. . . Additionally, in assessing your 

client's case, the full Board concurs with 

the determination of the . . . Panel that 

clear and convincing evidence exists that 

your client has seriously violated the 

conditions of parole and that revocation is 

desirable. . . . 
12 A-0681-12T3

III

The record does not contain clear and convincing evidence 

of Hobson's violation of general condition number 9. That 

standard of proof requires evidence that persuades the fact 

finder "that the truth of the contention is 'highly probable.'" 

In re Perskie, 207 N.J. 275, 290 (2011) (quoting 2 McCormick on 

Evidence § 340, at 487 (Broun ed., 6th ed. 2006)). Stated 

differently, the evidence must be sufficient to "'produce in the 

mind of the trier of fact a firm belief or conviction as to the 

truth of the allegations sought to be established.'" In re 

Purrazzella, 134 N.J. 228, 240 (1993) (quoting Aiello v. Knoll 

Golf Club, 64 N.J. Super. 156, 162 (App. Div. 1960)). Even 

"evidence that is uncontroverted may nonetheless fail to meet 

the elevated clear and convincing evidence standard." In re 

Perskie, supra, 207 N.J. at 290. 

The Board reminds us of the deference a reviewing court 

owes to an agency's factual findings — a standard that is wellestablished and must be followed. The question for a court is 

"'whether the findings made could reasonably have been reached 

on sufficient credible evidence present in the record,' 

considering 'the proofs as a whole,' with due regard to the 

opportunity of the one who heard the witnesses to judge of their 

credibility." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) 
13 A-0681-12T3

(quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Implicit 

in that standard is a court's obligation to reverse where the 

evidence, viewed in the light most favorable to the agency's 

decision, is inadequate to meet the standard of proof. 

Hobson was charged with failing to "refrain from the use, 

possession or distribution of a controlled dangerous substance, 

controlled substance analog or imitation controlled dangerous 

substance as defined in N.J.S.A. 2C:35-2 and N.J.S.A. 2C:35-

11[,] as evidenced by [your] arrest in the City of Plainfield on 

10/05/11 for [p]ossession of Marijuana/Hash under 50 Grams." 

Even if we were to assume that the officers' testimony, without 

any other evidential support, was adequate to establish 

defendant's possession of several small bags of a green 

vegetative substance by clear and convincing evidence, there was 

absolutely no evidence supporting a finding that the substance 

was marijuana or some other controlled dangerous substance. 

Accordingly, Hobson's violation of this condition based on 

possession of marijuana cannot be sustained.

The evidence was also inadequate to permit a reasonable 

finder of fact to conclude that Hobson possessed an imitation 
14 A-0681-12T3

controlled dangerous substance as defined in N.J.S.A. 2C:35-11.4 

N.J.S.A. 2C:35-11 defines the crime of distributing or 

possessing "imitation controlled dangerous substances." The 

term is not defined and its meaning must be derived from the 

text of the definition of the crime. In pertinent part, 

N.J.S.A. 2C:35-11 provides:

a. It is unlawful for any person to 

distribute or to possess or have under his 

control with intent to distribute any 

substance which is not a controlled

dangerous substance or controlled substance 

analog:

(1) Upon the express or implied 

representation to the recipient that the 

substance is a controlled dangerous 

substance or controlled substance analog; or

(2) Upon the express or implied 

representation to the recipient that the 

substance is of such nature, appearance or 

effect that the recipient will be able to 

distribute or use the substance as a 

controlled dangerous substance or controlled 

substance analog; or

(3) Under circumstances which would lead a 

reasonable person to believe that the 

substance is a controlled dangerous 

substance or controlled substance analog.

Any of the following shall constitute prima 

facie evidence of such circumstances:

 

4 The condition also refers to the definitions in N.J.S.A.

2C:35-2, but the statute does not define the term "imitation 

controlled dangerous substance."
15 A-0681-12T3

(a) The substance was packaged in a manner 

normally used for the unlawful distribution 

of controlled dangerous substances or 

controlled substance analogs.

(b) The distribution or attempted 

distribution of the substance was 

accompanied by an exchange of or demand for 

money or other thing as consideration for 

the substance, and the value of the 

consideration exceeded the reasonable value 

of the substance.

(c) The physical appearance of the substance 

is substantially the same as that of a 

specific controlled dangerous substance or 

controlled substance analog.

. . . . 

Bene provided the only evidence tending to establish that 

the green vegetative substance Hobson possessed was an 

"imitation controlled dangerous substance." She said, "[i]t was 

a green vegetative substance that was packaged as CDS." Her 

testimony, however, included no comparison of the packaging she 

observed in this case and the packaging of CDS. Without such a 

comparison, that testimony was not even adequate to prove by a 

preponderance of the evidence that the substance Hobson had "was 

packaged in a manner normally used for the unlawful distribution 

of controlled dangerous substances or controlled substance 

analogs." 
16 A-0681-12T3

For the foregoing reasons, the Board's finding that Hobson 

violated general condition number 9 is reversed and the charge 

is vacated. 

IV

In contrast, there was adequate evidence to support a 

finding, by clear and convincing evidence, that Hobson consumed 

alcohol. Giving deference to the hearing officer's ability to 

assess credibility, the officers' testimony about detecting the 

odor of alcohol and Hobson's oral admission, coupled with the 

admission form Hobson signed, was adequate to prove that 

violation by clear and convincing evidence. 

That does not end the inquiry, however. As previously 

noted, the Board may revoke the release status of a parolee 

serving a term of mandatory parole supervision required by NERA 

only if the Board finds, by clear and convincing evidence, that 

the parolee "has seriously or persistently violated the 

conditions of his parole." N.J.S.A. 30:4-123.60. Obviously, 

our reversal of the Board's finding on general condition number 

9 changes the analysis of the question as to whether the 

standard for revocation of parole is met. 

Ordinarily, we would remand so that the Board, which is 

charged with the responsibility, could consider whether the 

violation of the special condition requiring Hobson to refrain 
17 A-0681-12T3

from the consumption of alcohol meets the statutory standard for 

revocation of release status. This record, however, does not 

permit that determination. It establishes nothing other than 

the fact that on one occasion Hobson drank two shots of rum. 

Given Hobson's undisputedly consistent record of refraining from 

the use of alcohol during the two-year period following his 

release and maintaining employment, he cannot be found to have

"seriously" violated a condition of his parole under the plain 

meaning of that word. Accordingly, we direct the Board to 

promptly schedule Hobson's release subject to such conditions as 

it may deem appropriate.

Although it is not necessary to our decision, in the 

interest of avoiding repetition, it is appropriate to advise the 

Board that even if the evidence were adequate to support this 

revocation, we would have remanded for supplementation of the 

Board's decision. Both the Panel's decision and the Board's 

decision are inadequate in that they offer no explanation for 

the determination that Hobson "seriously violated" conditions of 

his release status. 

This court defers to an agency decision if it is supported 

by the record and not "arbitrary, capricious or unreasonable." 

In re Taylor, 158 N.J. 644, 657 (1999) (internal citation 

omitted). "[E]xercise of such deference is premised on our 
18 A-0681-12T3

confidence that there has been a careful consideration of the 

facts in issue and appropriate findings addressing the critical 

issues in dispute." Bailey v. Bd. of Review, 339 N.J. Super.

29, 33 (App. Div. 2001). "[I]t is a fundamental of fair play 

that an administrative judgment express a reasoned conclusion. 

A conclusion requires evidence to support it and findings of 

appropriate definiteness to express it." N.J. Bell Tel. Co. v. 

Communications Workers of America, 5 N.J. 354, 375 (1950).

The Legislature did not grant the Board unbridled 

discretion to revoke the release status of a person subject to a 

term of NERA parole supervision. Absent conviction of a crime, 

the Board has that authority only if the parolee "has seriously 

or persistently violated the conditions of his parole." 

N.J.S.A. 30:4-123.60. A decision of a Panel or Board revoking 

parole without an articulation of the basis for revocation under 

the statutory standard has an appearance of unfairness and 

caprice that not only invites but requires careful scrutiny by a 

reviewing court. For the same reason, the Panel and Board must 

explain its reasons for selecting a release date or a future 

eligibility date as well. Similarly, in a case where conditions 

of release are altered or the sanction of lost commutation time 

is ordered, those determinations should be explained as well. 
19 A-0681-12T3

Reversed and remanded for further proceedings in conformity 

with this opinion.