N.J. Admin. Code § 10A:71-7.17

Current through Register Vol. 56, No. 8, April 15, 2024

Section 10A:71-7.17 - Board panel action; schedule of future parole eligibility dates upon revocation of parole

(a) After consideration of the hearing officer's hearing summary and opinion and any written exceptions thereto, a two-member Board panel shall determine whether to revoke parole pursuant to N.J.A.C. 10A:71-7.12. The Board panel members shall not receive or consider any ex parte communication. The parolee's case shall be decided on the basis of the established record.

1. If parole is not revoked, the two-member Board panel shall authorize the release of the parolee, if in custody, and may modify the conditions of parole or establish appropriate special parole conditions.

2. If parole is revoked in the case of an adult or young adult parolee based on the violation of any parole condition, except failing to obey all laws and ordinances, or owning or possessing any firearm, as defined in N.J.S.A. 2C:39-1f, for any purpose, the two-member Board panel may certify parole release by:

i. Establishing a specific parole release date which shall be no later then nine months from the date an adult parolee was placed in custody on a parole warrant or six months from the date a young adult parolee was placed in custody on a parole warrant; and

ii. Establishing appropriate pre-release conditions; and/or

iii. Establishing appropriate special parole conditions.

3. Except as provided in this section, if parole is revoked by the two-member Board panel and parole release is not certified pursuant to (a)2 above, an adult inmate shall serve 12 months and a young adult inmate shall serve nine months, if the inmate has violated one of the following conditions of parole:

i. Failure to report to the District Parole Supervisor, or his or her designated representative, provided that such parolee is declared by the District Parole Supervisor to be missing from parole supervision;

ii. Failure to notify the assigned parole officer no later than the next business day upon the issuance by the appropriate court, pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 et seq., the Sexual Assault Survivor Protection Act of 2015, 2C:14-13 et seq., 2C:12-10.1, 2C:12-10.2, or the provisions of similar Federal or state statutes, of an order granting emergency relief, a temporary or final restraining or protective order, or an order establishing conditions of release or bail in a criminal matter or offense arising out of a domestic violence situation;

iii. Failure to comply with any condition established within an order granting emergency relief, a temporary or final restraining or protective order, issued by the appropriate court, pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 et seq., the Sexual Assault Survivor Protection Act of 2015, 2C:14-13 et seq., 2C:12-10.1, 2C:12-10.2, or the provisions of similar Federal or state statutes, or an order establishing conditions of release or bail in a criminal matter or offense arising out of a domestic violence situation, until the order is dissolved by the appropriate court or until a condition is modified or discharged by the appropriate court;

iv. Failure to refrain from behavior that results in the issuance of a final restraining or protective order pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 et seq., the Sexual Assault Survivor Protection Act of 2015, 2C:14-13 et seq., 2C:12-10.1, or the provisions of similar Federal or state statutes;

v. Owning or possessing any firearm, as defined at N.J.S.A. 2C:39-1.f, for any purpose, whether or not the firearm is operational;

vi. Owning or possessing any imitation firearm, as defined at N.J.S.A. 2C:39-1.v, for any purpose;

vii. Owning or possessing any firearm ammunition;

viii. Owning or possessing any weapon enumerated in N.J.S.A. 2C:39-1r;

ix. Failure to refrain from the purchase, use, possession, distribution, or administration of any narcotic drug, controlled dangerous substance, or controlled substance analog as defined in N.J.S.A. 2C:35-2; imitation controlled dangerous substance or imitation controlled substance analog as defined in N.J.S.A. 2C:35-11; or any paraphernalia as defined in N.J.S.A. 2C:36-1 related to such substances, except as prescribed by a physician; or

x. Failure to comply with any special condition of parole imposed pursuant to N.J.A.C. 10A:71-6.4(d) or (e).

(b) The future parole eligibility date established pursuant to (a)3 above may be decreased or increased by up to three months when, in the opinion of the two-member Board panel pursuant to (k) or (l) below, the circumstances of the parole violation and the characteristics and past record of the parolee warrant such adjustment.

(c) Except as provided in this section, upon revocation of parole, an adult inmate shall serve eight months and a young adult inmate shall serve six months, if the inmate has violated parole by failing to obey all laws and ordinances, by non-criminal conduct, or any parole condition not specified at (a) 3 above.

(d) The future parole eligibility date established pursuant to (c) above may be decreased or increased by up to three months in the case of an adult inmate or by up to two months in the case of a young adult when, in the opinion of a two-member Board panel pursuant to (k) or (l) below, the circumstances of the parole violation and the characteristics and past record of the parolee warrant such adjustment.

(e) Upon revocation of parole for the commission of a crime, an adult inmate:

1. Who has committed a fourth degree crime shall serve not less than eight nor more than 12 months, except as provided at (f) and (m) below and N.J.A.C. 10A:71-3.2;

2. Who has committed a third degree crime shall serve not less than 12 nor more than 16 months, except as provided at (f) and (m) below and N.J.A.C. 10A:71-3.2;

3. Who has committed a second degree crime shall serve not less than 16 nor more than 28 months, except as provided at (f) and (m) below and N.J.A.C. 10A:71-3.2;

4. Who has committed a first degree crime shall serve not less than 28 nor more than 48 months, except as provided at (f) and (m) below and N.J.A.C. 10A:71-3.2;

5. Who has committed the crimes of murder or kidnapping shall serve not less than four years, eight months nor more than eight years, four months, except as provided at (f) and (m) below and N.J.A.C. 10A:71-3.2;

6. Upon the second or subsequent revocation of parole for the commission of a crime, shall serve whatever time remains on the maximum sentence(s) or 10 years, whichever is less.

(f) Except as provided in this section, upon a two-member adult Board panel determining that an adult inmate shall serve a future parole eligibility term upon revocation of parole, the two-member adult Board panel shall establish such terms as follows:

1. The two-member adult Board panel shall establish the following:

i. A term of 10 months for the commission of a fourth degree crime;

ii. A term of 14 months for the commission of a third degree crime;

iii. A term of 22 months for the commission of a second degree crime;

iv. A term of 38 months for the commission of a first degree crime; and

v. A term of six years, six months for the commission of the crime of murder or kidnapping.

2. The term established may be decreased or increased within the limits provided by (e) above when, in the evaluation of the two-member adult Board panel, the mitigating and aggravating factors as set forth at (k) and (l) below, the circumstances of the parole violation and the characteristics and past record of the parolee warrant such adjustment.

(g) Except as provided in this section, upon a two-member young adult Board panel determining that a young adult inmate shall serve a future parole eligibility term upon the revocation of parole, the two-member young adult Board panel shall establish the following:

1. Except as provided at (h) and (m) below, a term of eight months for the commission of a fourth degree crime;

2. Except as provided at (h) and (m) below, a term of 10 months for the commission of a third degree crime;

3. Except as provided at (h) and (m) below, a term of 16 months for the commission of a second degree crime;

4. Except as provided at (h) and (m) below, a term of 24 months for the commission of a first degree crime; and

5. Except as provided at (h) and (m) below, a term of 30 months for the commission of the crimes of murder or kidnapping.

(h) The future parole eligibility date required pursuant to (g) above may be decreased or increased when, in the opinion of the two-member young adult Board panel pursuant to (k) or (l) below, the circumstances of the parole violation and the characteristics and past records of the parolee warrant such consideration. The increase or decrease shall be no more than the following:

1. Two months in the case of the commission of a fourth degree crime;

2. Four months in the case of the commission of a third degree crime or possession of controlled dangerous substance;

3. Six months in the case of the commission of a second degree crime, sale or distribution of controlled dangerous substance or possession of controlled dangerous substance with intent to distribute;

4. Eight months in the case of the commission of a first degree crime; and

5. Ten months in the case of the commission of the crimes of murder or kidnapping.

(i) Except as provided in this section, an inmate, upon the revocation of parole for the commission of a crime while on parole, shall serve at least six months or that portion of the custodial term remaining whichever, is less.

(j) In no case shall a future parole eligibility date established pursuant to (a) through (h) above be greater than the balance of the custodial term remaining.

(k) A two-member Board panel may decrease, pursuant to (b), (d), (f)2, or (h) above, the future parole eligibility date required pursuant to (a)3, (c), (f)1, or (g) above, if the two-member Board panel determines that one or more of the following mitigating factors is present:

1. The parolee has demonstrated a positive attitude to parole supervision;

2. The parolee was employed on a full-time basis;

3. The parolee's living arrangement was stable and supportive;

4. The parolee was under parole supervision for a period of at least two years;

5. The parolee has previously adjusted successfully to parole supervision;

6. The parolee has no previous convictions; and/or

7. The parolee's original sentence was for a non-violent offense.

(l) A two-member Board panel may increase, pursuant to (b), (d), (f)2, or (h) above, the future parole eligibility date required pursuant to (a)3, (c), (f)1, or (g) above, if the two-member Board panel determines that one or more of the following aggravating factors is present:

1. The parolee has demonstrated a negative attitude to parole supervision;

2. The parolee was under parole supervision for a period of less than six months;

3. The parolee has previous parole failures;

4. The parolee has extensive prior convictions;

5. The parolee has violated more than one parole condition;

6. The parolee was guilty of substance abuse while on parole; and/or

7. The parolee's original sentence was for a violent offense.

(m) A three-member Board panel may establish a future parole eligibility date which differs from that otherwise required by the provisions of this section if the future parole eligibility date, which would otherwise be established pursuant to this section, is clearly inappropriate in consideration of the circumstances of the parole violation and the characteristics and prior criminal record of the parolee.

1. If, in the opinion of a two-member Board panel revoking parole, the future parole eligibility date which would otherwise be established pursuant to this section is clearly inappropriate as provided in this section, the two-member Board panel shall refer such case for a three-member Board panel review for the purpose of establishing a future parole eligibility date.

i. In such instances, the third Board panel member shall review the record.

2. The two-member Board panel shall notify the inmate and the inmate's attorney, in writing, pursuant to N.J.A.C. 10A:71-7.18 that a future parole eligibility date pursuant to this section has not been established and the reasons therefor and that a three-member Board panel review of the record will be scheduled.

3. The inmate and/or the inmate's attorney shall have 30 days from the date notice is received to prepare and submit to the Board panel members a written statement on the inmate's behalf. The statement may include any information the inmate may deem relevant to the evaluation of his or her case by the Board panel members.

4. The three-member Board panel shall, upon disposition of the case, state in writing to the inmate and the inmate's attorney the reasons for the establishment of a future parole eligibility date, which differs from that otherwise required by the provisions of this section.

5. The decision of the three-member Board panel to establish a future parole eligibility date, which differs from that required by the provisions of this section shall be by unanimous decision only. Failure to reach a unanimous decision shall result in the referral of the inmate's case to the Board for the establishment of a future parole eligibility date.

6. If the three-member Board panel fails to reach a unanimous decision, the three-member Board panel shall notify the inmate and the inmate's attorney, in writing, that his or her case has been referred to the Board for the establishment of a future parole eligibility date.

7. The inmate and/or the inmate's attorney shall have 30 days from the date notice is received pursuant to (m)6 above to prepare and submit a written statement containing any additional information which the inmate and/or the inmate's attorney may deem relevant to the evaluation of his or her case by the Board.

8. The Board's establishment of a future parole eligibility date shall be based on the review of the record. Upon disposition of the case, the Board shall state in writing to the inmate and the inmate's attorney the reasons for the establishment of a future parole eligibility date, which differs from that otherwise required by the provisions of this section.

(n) Any future parole eligibility term determined pursuant to this section shall commence on the date the parolee was returned to custody as a parole violator, unless otherwise determined as a result of a court imposing a sentence for a crime committed while on parole.

(o) In the case of a county inmate who has been granted parole and whose parole has been revoked, the inmate shall not be credited for any time served on parole and shall not be eligible for parole consideration on the remainder of the original county sentence.

(p) If an inmate's maximum sentence will expire prior to the parole release date that could be established pursuant to (a)2 above or the future parole eligibility date that could be established pursuant to (a)3, (b), (c), (d), (f), (g), or (h) above, the appropriate Board panel may direct that such inmate serve his or her maximum sentence and not be eligible for parole consideration on the balance of the maximum sentence.

(q) A decision to revoke parole rendered pursuant to (a)2 or 3 above shall not be based on manufacturing, distributing, dispensing, possessing, or having under control with intent to manufacture, distribute, or dispense marijuana or hashish in violation of N.J.S.A. 2C:35-5.b(12) or possession of marijuana or hashish in violation of N.J.S.A. 2C:35-10.a(3).

(r) Any condition established by a Board panel pursuant to (a)1 or 2iii above shall not be based on manufacturing, distributing, dispensing, possessing, or having under control with intent to manufacture, distribute, or dispense marijuana or hashish in violation of N.J.S.A. 2C:35-5.b(12) or possession of marijuana or hashish in violation of N.J.S.A. 2C:35-10.a(3).

N.J. Admin. Code § 10A:71-7.17

Amended by 48 N.J.R. 2612(b), effective 12/5/2016

Adopted by 53 N.J.R. 1383(b), effective 8/16/2021

Amended by 54 N.J.R. 1728(a), effective 9/6/2022