                                NOT FOR PUBLICATION WITHOUT THE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 parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-2335-18T3

REGINALD HELMS,

          Appellant,

v.

NEW JERSEY STATE
PAROLE BOARD,

     Respondent.
_____________________________

                    Submitted May 11, 2020 – Decided July 15, 2020

                    Before Judges Ostrer and Susswein.

                    On appeal from the New Jersey State Parole Board.

                    Weil Gotshal & Manges, attorneys for the appellant
                    (Richard Michael Heaslip and Rachel A. Farnsworth on
                    the briefs).

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Sookie Bae-Park, Assistant Attorney
                    General, of counsel; Suzanne Marie Davies, Deputy
                    Attorney General, on the brief).

PER CURIAM
      Petitioner, Reginald Helms, appeals from a final agency decision by the New

Jersey State Parole Board (Board) revoking his parole and ordering him to serve

one year in state prison for violating conditions of parole supervision for life

(PSL). 1    Helms was administratively convicted of violating three PSL

conditions: (1) refraining from the purchase, use, possession, distribution, or

administration of a controlled dangerous substance (CDS) or an imitation CDS;

(2) failing to follow a curfew; and (3) driving without a valid license. He

contends the Board failed to prove these violations by clear and convincing

evidence. He denies he possessed a CDS or imitation CDS and contends that

the curfew and driving-without-a-license violations should be excused or at least

mitigated because he was suffering a medical emergency at the time and was

attempting to get to the hospital. He further contends the Board failed to

establish that his violations were serious and persistent and that revocation of

parole was desirable.

      We have carefully reviewed the record in view of the applicable principles

of law governing this appeal, including the deference we owe to an



1
  Helms completed the one-year term and has since been released from state
prison. He contends this appeal is not moot because there may be future
ramifications from the present administrative convictions and parole revocation.
We have decided to hear this appeal on its merits.
                                                                         A-2335-18T3
                                       2
administrative agency acting within the ambit of its expertise. Although we

believe more might have been done to prove that the envelopes seized by police

contained heroin or an imitation CDS, we affirm the Board's findings and its

final order revoking parole.

                                       I.

      In 2006, a jury convicted Helms of second-degree sexual assault and third-

degree endangering the welfare of a child.        He was sentenced on those

convictions to an aggregate term of ten years imprisonment, subject to the No

Early Release Act (NERA), N.J.S.A. 2C:43-7.2. As required by NERA, the

court imposed a three-year term of parole supervision which was to begin

immediately upon his release from prison. In addition, Helms was placed on

PSL pursuant to Megan's Law, N.J.S.A. 2C:7-1 to -23.

      After completing the custodial portion of his sentence, Helms was arrested

while on parole for possession of CDS and driving without a license. As a result,

his parole was revoked and he was returned to custody.

      Helms was subsequently released from prison and placed in the Re-Entry

Substance Abuse Program (RESAP). While in RESAP, Helms's three-year

parole supervision term under NERA expired. After he was released from




                                                                         A-2335-18T3
                                       3
RESAP, the Board continued to supervise Helms pursuant to his sentence of

PSL.

       Less than six months after being released from reimprisonment following

revocation of parole, Newark Police stopped and ticketed Helms for operating a

vehicle without a valid driver's license. Helms's parole officer did not initiate

the parole revocation process for that violation. Instead, the parole officer

imposed a curfew of 9:00 p.m. to 6:00 a.m. as a general condition of PSL.

       On March 21, 2018, just two months after being placed under curfew, the

police stopped Helms around midnight while he was operating a motor veh icle.

The police seized suspected CDS during the encounter. Helms was charged with

the disorderly persons offense of failing to turn CDS over to a law enforcement

officer in violation of N.J.S.A. 2C:35-10(c).2

       Parole authorities initiated the process of revoking parole based upon this

incident. Helms waived a probable cause hearing and proceeded directly to a

final parole revocation hearing. Helms entered a plea of not guilty to violating

PSL condition twelve, refraining from the use, possession, distribution, or

administration of any narcotic drug, CDS or CDS analog, imitation CDS or

imitation CDS analog. Helms entered a guilty-with-an-explanation plea to


2
    The municipal court charges were eventually dismissed.
                                                                          A-2335-18T3
                                        4
violating PSL condition nineteen, failing to comply with a curfew established

by the assigned parole officer. Helms also entered a guilty-with-an-explanation

plea to violating PSL condition twenty, refraining from operating a motor

vehicle without a valid license.

                                       II.

      Helms testified that on March 21, 2018, he suffered a medical emergency

around midnight and became concerned for his life when his legs became stiff

and he began to feel dizzy. Helms called a friend, Kaheem James, and asked for

a ride to the hospital because, Helms claimed, he could not afford an ambulance

or a taxi. James arrived at Helms's residence driving his girlfriend's car. James

told Helms that Helms needed to drive the car. Helms agreed to do so.

      Soon after, Newark Police Officer Lake initiated a traffic stop based on

an equipment violation. Officer Lake discovered there was an active traffic

warrant for Helms and directed him to step out of the vehicle. As Helms exited

the vehicle, Officer Lake observed "a little yellow soda cap with [seventeen]

envelopes of heroin [fall] off of his person[] onto the floor." Based o n his

training and experience, Officer Lake believed the envelopes contained heroin.

      Helms testified that he never possessed the envelopes and that they did

not fall from his person when he exited the vehicle.


                                                                         A-2335-18T3
                                       5
      The hearing officer found the testimony of Officer Lake to be detailed,

credible, and reliable. The hearing officer concluded, based on Officer Lake's

testimony, that there was clear and convincing evidence that Helms was in

possession of CDS or imitation CDS in violation of PSL condition twelve. The

hearing officer also found that there was clear and convincing evidence to

support the two other violations to which Helms pleaded guilty. The hearing

officer rejected Helm's claims with respect to a medical emergency.

      The hearing officer recommended that Helms's PSL release status be

revoked and that Helms serve a twelve-month term of incarceration. A Board

panel affirmed the hearing officer's findings.      Helms thereafter filed an

administrative appeal to the full Board. Subsequently, the Board issued a Notice

of Final Agency Decision affirming the parole revocation decision.

                                      III.

      Helms raises the following contentions for our consideration:

            POINT I

            THE DECISION OF THE PAROLE BOARD WAS
            ARBITRARY,        CAPRICIOUS,     OR
            UNREASONABLE, AND NOT SUPPORTED BY
            SUBSTANTIAL EVIDENCE IN THE RECORD,
            BECAUSE THE PAROLE BOARD FAILED TO
            ESTABLISH BY CLEAR AND CONVINCING
            EVIDENCE THAT MR. HELMS SERIOUSLY OR


                                                                        A-2335-18T3
                                       6
      PERSISTENTLY VIOLATED HIS CONDITIONS OF
      PAROLE.

            A. THE EVIDENCE DOES NOT
            ESTABLISH THAT OFFICER LAKE
            CONFISCATED IMITATION CDS.

            B. THE EVIDENCE DOES NOT
            ESTABLISH THAT MR. HELMS
            POSSESSED  THE CONFISCATED
            SUBSTANCE.

            C. [DEFENDANT'S PAROLE OFFICER]
            HAS NOT PRESENTED CLEAR AND
            CONVINCING EVIDENCE OF MR.
            HELMS'S SERIOUS OR PERSISTENT
            VIOLATION OF PSL CONDITIONS.

      POINT II

      THE FINAL AGENCY DECISION OF THE PAROLE
      BOARD WAS ARBITRARY, CAPRICIOUS, OR
      UNREASONABLE, AND NOT SUPPORTED BY
      SUBSTANTIAL CREDIBLE EVIDENCE IN THE
      RECORD AS A WHOLE, BECAUSE THE PAROLE
      BOARD    FAILED  TO   ESTABLISH    THAT
      REVOCATION OF MR. HELMS'S PAROLE WAS
      DESIRABLE.

In addition, Helms raises the following points in his reply brief:

      POINT I

      IT WAS ARBITRARY AND CAPRICIOUS FOR THE
      BOARD TO FIND THAT MR. HELMS VIOLATED
      CONDITION [TWELVE], BECAUSE OFFICER
      LAKE'S TESTIMONY WAS PATENTLY NON-
      CREDIBLE AND NO OTHER EVIDENCE WAS

                                                                     A-2335-18T3
                                  7
            OFFERED TO SATISFY THE CLEAR                       AND
            CONVINCING STANDARD OF PROOF.

            POINT II

            THE BOARD'S "SERIOUS AND DESIRABLE"
            FINDING WARRANTS CAREFUL SCRUTINY, NOT
            UNFETTERED DEFERENCE.

            POINT III

            THE BOARD'S FINAL DECISION DID NOT
            CONSIDER, AND IN ITS LETTER BRIEF DOES
            NOT ADEQUATELY ADDRESS, SEVERAL
            MATERIAL FACTS.

                                      IV.

      We begin our analysis by acknowledging the legal principles governing

this appeal. The standard of review is deferential to the Board. Our review is

limited to evaluating whether the Board acted arbitrarily or abused its

discretion. In re Vey, 272 N.J. Super. 199, 205–06 (App. Div. 1993). "The

question for a [reviewing] 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.'" Hobson v. N.J. State

Parole Bd., 435 N.J. Super. 377, 388 (App. Div. 2014) (quoting Close v.

Kordulak Bros., 44 N.J. 589, 599 (1965)). The burden is on the challenging


                                                                         A-2335-18T3
                                       8
party to show that the Board's actions were arbitrary, unreasonable, or

capricious. Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App.

Div. 1993).

      Although most parole actions require only a preponderance of the

evidence, revocation of parole must be supported by clear and convincing

evidence. N.J.A.C. 10A:71-7.12(c)(1); N.J.A.C. 10A:71-7.15(c). Clear and

convincing evidence persuades the fact finder "that the truth of the contention is

'highly probable.'" Hobson, 435 N.J. Super. at 387 (quoting In re Perskie, 207

N.J. 275, 290 (2011)). "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."'"       Ibid. (quoting In re

Purrazzella, 134 N.J. 228, 240 (1993)). The evidence must be "so clear, direct

and weighty and convincing as to enable either a judge or jury to come to a clear

conviction, without hesitancy, of the truth of the precise facts in issue." In re

Registrant R.F., 317 N.J. Super. 379, 384 (App. Div. 1998) (quoting In re

Seaman, 133 N.J. 67, 74 (1993)). "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, 435 N.J. Super.

at 388.


                                                                           A-2335-18T3
                                        9
      Furthermore, the Board should only revoke parole for serious and

persistent violations of parole. N.J.A.C. 10A:71-7.12(a)(1); see also Hobson,

435 N.J. Super. at 391 ("Absent [a] conviction of a crime, the Board has

[revocation] authority only if the parolee 'has seriously or persistently violated

the conditions of his parole.'" (quoting N.J.S.A. 30:4–123.60)). Further, the

Board must determine "[w]hether [the] revocation of parole is desirable."

N.J.A.C. 10A:71-7.12.

      In Hobson, we noted, "[t]he 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." 435 N.J. Super. at 382. Accordingly, this determination falls

to the Board's "highly predictive and individualized discretionary appraisals."

Acoli v. N.J. State Parole Bd., 224 N.J. 213, 222 (2016) (quoting Beckworth v.

N.J. State Parole Bd., 62 N.J. 348, 359 (1973)).

                                       V.

                                       A.

      We turn next to Helms's arguments concerning the Board's finding that he

possessed CDS or imitation CDS. We first examine his contention that the State


                                                                          A-2335-18T3
                                       10
failed to prove by clear and convincing evidence that the envelopes recovered

by Officer Lake contained CDS or imitation CDS.

      Helms submits the circumstances of the present case are substantially

identical to those we confronted in Hobson—a case where we concluded that the

Board failed to prove an imitation CDS violation by clear and convincing

evidence.   We therefore closely examine that precedent to discern the

similarities and differences between the facts in that case and the facts in the

matter before us.

      The panel in Hobson began its analysis by noting that, "[t]he term

[imitation] is not defined and its meaning must be derived from the text of the

definition of the crime." 435 N.J. Super. at 388–89. After examining the

statutory text of the imitation CDS offense defined in N.J.S.A. 2C:35-11, the

Hobson court looked to whether the testimony presented in that case supported

a finding of imitation CDS. 435 N.J. Super. at 389. The panel determined:

            [the parole officer involved in the stop] provided the
            only evidence tending to establish that the green
            vegetative substance [the parolee] possessed was an
            "imitation controlled dangerous substance." [The
            officer] said, "[i]t was a green vegetative substance that
            was packaged as CDS." [The officer's] 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

                                                                         A-2335-18T3
                                       11
            evidence that the substance [the parolee] had "was
            packaged in a manner normally used for the unlawful
            distribution of controlled dangerous substances or
            controlled substance analogs.'"

            [Ibid.]

We further noted, "[t]here 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." Id. at 385.

      We turn now to the evidence presented in the case before us.         The

following exchange occurred between Officer Lake and the parole officer who

questioned him at the revocation hearing:

            Q:·Have you had any occasion to make arrests
            involving CDS?

            A:·Yes, I have.

            Q:·Approximately how many arrests have you made
            involving CDS?

            A: Probably between eight to ten.

                  ....

            Q: Can you describe the circumstances that led to the
            stopping of the vehicle?

                  ....

            A: At that time we asked Mr. Helms to step out of the
            vehicle. When he stepped out of the vehicle, it was like

                                                                       A-2335-18T3
                                      12
            a ·little yellow soda cap with 17 envelopes of heroin
            fell off of his persons onto the floor.· They were -- they
            were labeled -- red stamp labeled overdose.· And at that
            time we placed him under arrest for the warrant and for
            that CDS heroin.

                   ....

            Q: All right. Now, based on your training and
            experience, was the physical appearance of the
            substance subsequently that was the same as CDS?

            A: Yes.

            Q: Okay.

            A: It was CDS heroin.

            Q: Okay. Based on your training and experience, was
            the substance packaged in the matter normally used for
            the unlawful distribution of CDS of marijuana, heroin,
            cocaine, et cetera?

            A: Yes, CDS heroin.· Yes.

      The evidence presented in the case before us suffers from some of the

same weaknesses that led us to reverse the final agency decision revoking

Hobson's parole. As in Hobson, no evidence was presented that the suspected

CDS had been tested forensically. Also as in Hobson, the State in this case did

not introduce into evidence the seized envelopes or photographs of them.

Officer Lake's barebones testimony, moreover, is in some respects comparable

to the testimony we found inadequate in Hobson. Although here the officer did

                                                                         A-2335-18T3
                                       13
compare the appearance of the substance he recovered to the appearance of CDS,

he did so in a cursory and conclusory manner. 3

      Significantly, however, Lake testified that the envelopes were labeled

"overdose." We believe this important fact distinguishes this case from the facts

presented in Hobson. Labels by their nature serve to represent what is contained

inside a package. The imprint of the brand "overdose" clearly evokes an opiate

substance such as heroin.   At the very least, glassine bags bearing that ominous

label were meant to be seen as containing CDS. We therefore conclude that

sufficient evidence was adduced to support the hearing officer's conclus ion that

the small envelopes contained either heroin or imitation heroin.




3
  We note that Officer Lake also testified as to his training, explaining he was
a recent graduate from the State Police Academy where he attended a two-day
class where instructors showed officers different types of drugs in person.
Helms challenges the officer's training and experience in narcotics enforcement.
We agree the officer's training and experience is limited. However, we deem
the assessment of the appropriate weight to give to the officer's knowledge about
CDS packaging based on training and experience to be a question vested in the
discretion of the hearing officer and Board. Cf. LaBracio Family P'ship v. 1239
Roosevelt Ave., Inc., 340 N.J. Super. 155, 165 (App. Div. 2001) ("[T]he weight
to be given to the evidence of experts is within the competence of the fact-
finder."). There is no bright-line threshold of experience below which a police
officer's opinion is deemed to be unreliable. We therefore decline to substitute
our judgment for the hearing officer's credibility determination that wa s
accepted by the Board.
                                                                         A-2335-18T3
                                      14
      We add that Officer Lake was subjected to effective cross-examination,

and counsel argued forcefully that the officer's training and experience was

inadequate to support his conclusion. We decline in these circumstances to

reject the credibility assessment made by the hearing officer and ultimately

adopted by the Board. See Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am.,

65 N.J. 474, 484 (1974) ("[A]ppellate function is a limited one: we do not disturb

the factual findings and legal conclusions of the trial judge unless we are

convinced that they are so manifestly unsupported by or inconsistent with the

competent, relevant and reasonably credible evidence as to offend the interests

of justice." (quoting Fagliarone v. Twp. Of N. Bergen, 78 N.J. Super. 154, 155

(App. Div. 1963))).

                                       B.

      We next address Helm's contention that the Board failed to prove by clear

and convincing evidence that Helms possessed the envelopes that were

recovered by Officer Lake. Helms argues that he was not the owner of the car

and claims he was unaware of any CDS that may have been placed in it by the

owner.

      Helms challenges the credibility of Officer Lake's version of events. He

contends the officer did not observe the packets fall from his person but rather


                                                                          A-2335-18T3
                                       15
found them on the ground after Helms had been arrested and secured in the

police car. He argues that it strains credulity that seventeen envelopes fell out

of a soda cap. He also claims the Board should have obtained and presented

police body camera and dash camera recordings of the incident. He submits he

is entitled to an inference that the video recordings would have supported his

testimony that the envelopes did not fall from his person when he exited the car.

      These contentions all share a common theme; they relate to the credibility

of Officer Lake's testimony and the credibility of Helms's competing testimony.

These same arguments were presented to the hearing officer. We do not believe

the hearing officer abused his discretion in crediting Officer Lake's testimony.

State v. Elders, 192 N.J. 224, 244 (2007) ("An appellate court 'should give

deference to those findings of the trial judge which are substantially influenced

by his opportunity to hear and see the witnesses and to have the "feel" of the

case, which a reviewing court cannot enjoy.'" (quoting State v. Johnson, 42 N.J.

146, 161 (1964))).

      In sum, when viewed in the light most favorable to the agency's decision,

Hobson, 435 N.J. Super. at 388, we conclude the hearing officer could find by clear

and convincing evidence, based on the credible testimony of the officer, that Helms

possessed and dropped multiple glassine bags of a white substance labeled


                                                                           A-2335-18T3
                                       16
"overdose." In view of the deferential standard of review, especially given the

hearing officer's opportunity to assess live testimony, we accept the Board's

factual findings and affirm the administrative conviction relating to the

possession of CDS or imitation CDS.

                                      VI.

      We turn next to Helms's contention that the curfew and driving-without-

a-license violations should be excused or mitigated by reason of medical

emergency. N.J.A.C. 10A:71-7.14(c)(2)(ii) affords a parolee the right at a

revocation hearing to admit that he or she committed the parole condition, "but

there are substantial reasons which justified or mitigated the violations(s) and

make revocation inappropriate and that the reasons are complex or otherwise

difficult to develop or present."

      It seems implausible to us that Helms would agree to drive his friend's car

while suffering the dizziness and stiffening of the legs as he now claims. The

record before us shows that the hearing officer and Board considered the alleged

medical emergency and rejected it as mitigation for the violations to which

Helms pleaded guilty. We conclude the Board did not abuse its discretion in

rejecting the medical emergency defense.




                                                                         A-2335-18T3
                                      17
                                      VII.

      Finally, we address Helms's contention that the Board failed to establish

that he "has seriously or persistently violated the conditions of his parole ,"

N.J.S.A. 30:4–123.60(b), and that the "revocation of parole is desirable."

N.J.A.C. 10A:71-7.12(c)(2). As we have noted, this is not the first time Helms's

parole was revoked. Even after serving time in prison for past parole violations,

he has continued to commit violations. Helms's repeated incidents of driving

without a license not only posed risks to public safety but demonstrate the need

to impress upon him yet again that he must comply with all PSL conditions. We

therefore conclude the Board did not abuse its broad discretion in determining

that revocation and another year of imprisonment is necessary and appropriate

to address Helms's persistent misconduct. Acoli, 224 N.J. at 222.

      To the extent we have not addressed them, any other arguments raised by

Helms in this appeal lack sufficient merit to warrant discussion in this opinion.

R. 2:11-3(e)(1)(E).

      Affirmed.




                                                                         A-2335-18T3
                                      18
