GEORGE S. BUSSINGER VS. NEW JERSEY STATE PAROLE BOARD (NEW…

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-3254-19T2

GEORGE S. BUSSINGER,
a/k/a STEVE BUSSINGER,

          Appellant,

v.

NEW JERSEY STATE
PAROLE BOARD,

     Respondent.
_________________________

                   Submitted October 1, 2020 – Decided October 21, 2020

                   Before Judges Geiger and Mitterhoff.

                   On appeal from the New Jersey State Parole Board.

                   George S. Bussinger, appellant pro se.

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Melissa H. Raksa, Assistant Attorney
                   General, of counsel; Suzanne Davies, Deputy Attorney
                   General, on the brief).

PER CURIAM
      George S. Bussinger appeals from a final agency decision of the New

Jersey State Parole Board (Board) revoking his mandatory supervision status

and establishing a twelve-month parole eligibility term. We affirm.

      We derive the following facts from the record.         In December 2001,

Bussinger robbed a casino cashier at Caesar's Casino in Atlantic City. Later that

month, he was arrested by Philadelphia Police for unrelated crimes committed

in Pennsylvania.     Bussinger admitted to committing the robbery when

interviewed by detectives from New Jersey.

      Bussinger pled guilty to first-degree robbery, N.J.S.A. 2C:15-1, and was

sentenced to an eight-year term subject to eighty-five percent parole ineligibility

and a five-year period of mandatory parole supervision upon his release from

custody under the No Early Release Act, N.J.S.A. 2C:43-7.2.

      On January 14, 2014, Bussinger was released from custody and began

serving the five-year period of mandatory parole supervision. Prior to his

release, Bussinger agreed to abide by the conditions of parole imposed by the

Board or the District Parole Office, which included reporting in person to his

parole officer, residing at a residence approved by his parole officer, obtaining

permission from his parole officer prior to any change of residence, and

obtaining permission from his parole officer prior to leaving the state of his


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approved residence. Parole supervision was transferred to Pennsylvania, where

he resided.

      On July 7, 2017, Bussinger left his residential community program at

Coleman Hall and never returned. Parole violation warrants were issued for his

arrest. Bussinger made no attempt to contact his parole officer or seek approval

to change his residence while he remained a fugitive. He was ultimately arrested

in Philadelphia during a traffic stop on May 30, 2019, some twenty-one months

after he absconded.

      The Pennsylvania Board of Probation and Parole recommitted Bussinger

for changing his residence without permission and failing to complete the

required programming at Coleman Hall. It relied on Bussinger's own testimony

in reaching that decision.

      Shortly thereafter, the New Jersey State Parole Board subsequently served

Bussinger with notice of a parole revocation hearing. At the hearing, Bussinger

pleaded guilty to all three violations and admitted that he had failed to report in

person, failed to live at his approved residence, and failed to obtain permission

to change his residence.

      Bussinger testified that he absconded in order to live with his mother, who

had cancer. He did not seek permission to change his residence because he


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thought it might be denied. Although his mother died in June 2018, Bussinger

stated he did not plan to surrender until an anticipated "amnesty period" in May

2019 that never occurred.

      The Board found that Bussinger violated his parole supervision terms and

revoked parole supervision status. The Board ordered him to serve a twelve-

month future eligibility term (FET). This appeal followed.

      Bussinger raises the following points for our consideration:

            POINT I

            THE TERM "SERIOUS", AS USED IN N.J.S.A. 30:4-
            123.60 IS OVERLY BROAD (Not Raised Below).

            POINT II

            THE RESPONDENT FAILED TO SHOW THAT
            CLEAR    AND     CONVINCING    EVIDENCE
            SUPPORTED    ITS   FINDING   THAT    THE
            VIOLATIONS WERE "SERIOUS" AS USED IN THE
            STATUTE.

            POINT III

            REVOCATION OF PAROLE WILL IMPEDE
            REHABILITATION    CONTRARY    TO   THE
            LEGISLATIVE INTENT OF NEW JERSY PAROLE
            LAWS.

      We have carefully considered Bussinger's arguments in light of the record

and controlling legal principles.   We affirm, substantially for the reasons


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                                       4
expressed in the Board's comprehensive written decision, which is supported by

sufficient credible evidence in the record as a whole. R. 2:11-3(e)(1)(D). We

add the following comments.

      Our review of a Parole Board's decision is limited. Hare v. N.J. State

Parole Bd., 368 N.J. Super. 175, 179 (App. Div. 2004). We "must determine

whether the factual finding could reasonably have been reached on sufficient

credible evidence in the whole record." Ibid. (citing Trantino v. N.J. State Parole

Bd., 166 N.J. 113, 172, modified, 167 N.J. 619 (2001)). The appellant has "[t]he

burden of showing that an action was arbitrary, unreasonable or capricious."

McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002).

      Applying these well-established principles, we discern no basis to

overturn the Board's final decision. The Board considered the relevant facts and

submissions in revoking his mandatory supervision status and establishing a

twelve-month FET. The Board's determination is amply supported by the record

and consistent with controlling law. Its decision was not arbitrary, capricious,

or unreasonable.

      The Board may revoke parole and return a parolee to custody when the

parolee "seriously or persistently violate[s] the conditions of [parole]." N.J.S.A.

30:4-123.60(b).    Bussinger argues that the term "seriously or persistently


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                                        5
violated" is overly broad and ambiguous because the word "serious" is not

defined by statute or regulation. We disagree.

      We recognize that "[t]he Legislature [has] not further define[d] 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." Hobson v. N.J. State Parole Bd., 435 N.J. Super. 377, 382

(App. Div. 2014).

      "Drawing on the diverse backgrounds of its members, the Parole Board

makes '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)). The Board properly exercises its authority

to revoke parole when there is "proof by clear and convincing evidence that the

person 'has seriously or persistently violated the conditions' without any

statutory or regulatory definition of that term.'" Hobson, 435 N.J. Super. at 382.

      By any measure, Bussinger's parole violations were serious and persistent.

He failed to abide by several important parole conditions. He did not turn

himself in. The evidence was clear and convincing that he remained totally

noncompliant for twenty-one months until he was arrested.


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      In addition, for the first time on appeal in his reply brief, Bussinger argues

that because of COVID-19, the Department of Corrections "is in a virtual lock-

down" and "all rehabilitative programming has ceased." He claims that "the

pandemic and conditions brought about by it make the revocation of parole

unconstitutional" because "the revocation (i.e. punishment) does not . . .

conform with contemporary standards of decency," is "grossly disproportionate

to the offense," and "goes beyond what is necessary to accomplish any legitimate

penological objective." (Alteration in original).

      In addition, Bussinger argues that his "single-episode, nonviolent and

noncriminal" violation of his parole conditions should not "subject him to the

cruel, unusual and inhumane treatment that he will be subject to once the

[COVID-19] virus enters the New Jersey Department of Corrections." We are

unpersuaded by his argument.          Bussinger violated several fundamental

conditions of parole. The long-standing violations were ongoing until he was

arrested.

      Moreover, Bussinger, who is now forty-four years old, does not claim his

age or any underlying medical condition makes him vulnerable to an enhanced

risk of serious medical complications if he were to contract COVID-19, as

recognized by the Center for Disease Control. Nor does he claim he suffers from


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serious medical conditions not adequately treated by the Department of

Corrections. Instead, Bussinger raises a mere generalized fear of contracting

COVID-19.

      As our Supreme Court recently made clear, in the context of the COVID-

19 pandemic, "the nature of the inmate's illness and the effect of continued

incarceration on his health" are the basis for a change in custody. In re Request

to Modify Prison Sentences, Expedite Parole Hearings & Identify Vulnerable

Inmates, ___N.J. ___, ___ (2020) (slip op. at 20). In order to obtain a change in

custody, the "inmate[] must present evidence of both an [underlying] 'illness or

infirmity' . . . and the increased risk of harm that incarceration poses to that

condition. A generalized fear of contracting an illness is not enough." Id. at 20-

21.

      Bussinger's unsupported argument is without sufficient merit to warrant

further discussion in this opinion. R. 2:11-3(e)(2). Our holding is without

prejudice to Bussinger filing a properly supported motion in the trial court for a

change in custody under Rule 3:21-10(b).1




1
  Because he was convicted of first-degree robbery, Bussinger is not eligible for
an emergency medical furlough under Executive Order No. 124 (Apr. 10, 2020).
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      Bussinger's remaining arguments are also without sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(2).

      Affirmed.




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