November 20, 2007
AZAM KHAN, APPELLANT,
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.
On appeal from a Final Decision of the State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 29, 2007
Before Judges S.L. Reisner and Baxter.
Azam Khan appeals from a May 24, 2007 final decision of the Parole Board, affirming a recommendation of the Adult Panel denying him parole and setting an eighteen-month future eligibility date (FET). We accelerated the appeal in light of Khan's three-year sentence, which terminates in September 2008. We now reverse.
Defendant pled guilty to State and Federal charges arising out of the same set of activities.*fn1 In essence, between 1996 and 1998, defendant acted as the "front man" for a sham pharmacy. According to documentation underlying his Federal plea agreement, defendant was a minor participant in the scheme, but by allowing his name to be used as the purported owner of the pharmacy, he enabled the major participants to defraud the Medicaid program out of millions of dollars. Defendant had no prior criminal record. He cooperated in the prosecution of the other participants, and as a result received a favorable plea bargain from Federal authorities on Federal money-laundering charges. He was sentenced to ten months in Federal prison. Defendant was also prosecuted by the State on charges of health care fraud. He pled guilty to one count of second-degree health care fraud, N.J.S.A. 2C:21-4.3. Noting defendant's cooperation with law enforcement, Judge Ravin concluded that the mitigating factors preponderated, and he sentenced defendant to three years imprisonment to run concurrent to defendant's Federal sentence.
Defendant became eligible for parole on his New Jersey sentence while he was still in Federal prison. Prior to the State parole eligibility date of March 23, 2007, the Parole Board sent defendant a letter dated January 22, 2007, enclosing a copy of a case summary prepared by hearing officer Yolanda Garcia. That case summary indicated that defendant's case was being referred to the Adult Panel for review. Significantly, the January 22 letter also advised defendant that "you have until 02-27-07 to submit comments in regard to the information noted in the Case Assessment or any other information that you wish the Board to consider." The letter advised defendant that "thereafter" he would have a teleconference hearing before the Adult Panel. The letter was postmarked January 26, 2007 and did not arrive at the Federal prison where defendant was incarcerated until January 30, 2007.
Meanwhile, as the State concedes, without notice to defendant and before he had time to respond to the January 22 letter, the Adult Panel scheduled a teleconference hearing on defendant's parole application on January 26, 2007. We have reviewed the brief transcript of that hearing. Much of the transcript is "inaudible," but nothing in the transcript indicates that defendant was told that this was his parole hearing. Consequently, he would have had no reason to request an adjournment of the proceedings. Defendant was questioned briefly as to the underlying events surrounding his offense. He responded, apparently consistent with facts accepted by the Federal and State authorities in the plea negotiations, that he made no money from the Medicaid scheme and that he allowed a close friend to create a corporation using defendant's name, an action he admitted was wrong. During the hearing, one of the panel members noted that defendant immigrated to this country in 1991, and commented that when he had only been in this country for five years, he was already getting in trouble.
On January 27, 2007, the Adult Panel voted to deny parole and set an eighteen month FET, based on its determination that "there is a reasonable expectation that you will violate conditions of parole if released." As reasons, the panel checked the "nature of criminal record increasingly more serious," "Presently incarcerated for multi crime convictions [State and Federal]," and that defendant lacked insight into his criminal behavior and minimized his conduct. The panel noted that defendant "appears to not have addressed issues as to why this crime was committed" and that he had only taken business courses while in prison. Defendant received this decision on February 6, 2007.
On February 13, 2007, defendant's counsel sent the Parole Board a long letter, setting forth a multiplicity of mitigating factors that the Panel seemed not to have considered. The letter enclosed the underlying documents relating to defendant's Federal and State plea bargains, illustrating not only that defendant was prosecuted twice for the same underlying conduct but that he cooperated with Federal and State authorities in both prosecutions. The material indicated that defendant acknowledged his criminal responsibility, although the Federal prosecutors concluded that he was a minor participant in the scheme. The letter also pointed out that defendant had taken parenting courses while in prison and had tutored other inmates for their GED tests.
On March 9, 2007, the Appeal Panel sent defendant an amended decision reaffirming its recommendation to deny parole. The Panel deleted from its amended decision references to "increasingly more serious" crimes and defendant having "only taken business courses." However, the decision continued to refer to defendant's being incarcerated for "multi-crime conviction" and stated that "subject appears to not have addressed issues as to why the crime was committed." The decision recommended that defendant participate in a "behavior modification" program. The cover letter noted that defendant could have requested a postponement of the January 26 hearing but did not, and that the panel "was well aware of defendant's level of participation in the offense for which he is incarcerated."
Defendant appealed this determination to the Parole Board, which voted on May 23, 2007 to affirm the Panel's decision. In a letter dated May 24, 2007, the Chief of the Appeals Unit*fn2 explained that "a preponderance of the evidence indicates that there is a reasonable expectation that your client would violate the conditions of parole if released." This conclusion was based on consideration of defendant's "current multi-crime conviction" and the Board's reasoning that "as a result of the Panel interview, Pre-parole report and documentation in the case file, the Panel determined that your client lacks insight into his criminal behavior and minimize[s] his conduct."
The parties agree that the standard of parole applicable to defendant is set forth in N.J.S.A. 30:4-123.53(a). Under that standard, an inmate shall be released on parole unless information supplied in the report filed pursuant to [N.J.S.A. 30:4-123.54] or developed or produced at a hearing . . . indicates by a preponderance of the evidence that the inmate has failed to cooperate in his or her own rehabilitation or that there is a reasonable expectation that the inmate will violate conditions of parole . . . if released on parole at that time. In reaching such determination, the board panel or board shall state on the record the reasons therefor. [Ibid.]
In reviewing the Board's decision, we accord the agency's action a presumption of validity and it is the challenging party's burden to establish that the Board's decision was unreasonable. Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304-05 (App. Div.), certif. denied, 135 N.J. 469 (1993). However, we do not rubber-stamp the agency's decision and its discretion is not unlimited:
We previously have recognized that Parole Board decisions are highly "individualized discretionary appraisals." Accordingly, the Board "has broad but not unlimited discretionary powers," and its determinations "are always judicially reviewable for arbitrariness."
Although in Trantino IV, supra, we acknowledged "the inherent difficulty in gauging whether a parole determination constitutes an abuse of discretion," we emphasized that the judicial review of Parole Board determinations "does not engender a more exacting standard of judicial review than that applicable to other administrative agency decisions." As this Court observed in In re Parole Application of Hawley, 98 N.J. 108 (1984):
The Board is the administrative agency charged with the responsibility of deciding whether an inmate satisfies the criteria for parole release under the Parole Act of 1979. We find no reason to exempt the Parole Board from the well-established principle that a court may review the actions of an administrative agency to determine if its power is being exercised arbitrarily or capriciously. [Trantino v. N.J. State Parole Board, 166 N.J. 113, 173 (2001)(Trantino V)(citations omitted).]
In this case, having reviewed the record, we conclude that the original panel decision resulted from an unfair process in which Khan had no opportunity to respond to the Case Assessment and no opportunity to otherwise prepare for the hearing. In fact, he may not even have known that the very brief teleconference was his hearing, because the record does not reflect that anyone so advised him. Moreover, his comments at the hearing, taken in the context of the record concerning his participation in the crime, simply do not support the panel's conclusion that he did not accept responsibility for his crime or that he tried to minimize the offense. His description of his participation appears to be entirely consistent with the version recited in the State and Federal plea bargains.
Defendant was a minor participant who made no money from the scheme.
Reading the transcript, the panel decision, and the Panel's and Board's subsequent attempts to justify the decision, we are left with the firm sense that the panel received an incomplete and unfair picture of defendant at the initial hearing and was unwilling to change its mind when confronted with additional evidence later. We are at a loss to understand how defendant's "multi-crime" conviction is relevant to his likelihood of succeeding on parole, when both convictions were based on the same conduct. Moreover, we conclude that the Panel's and the Board's conclusion that defendant "lacks insight into his criminal behavior and minimize[s] his conduct" is not supported on this record, and was reached through a process that did not give defendant a fair opportunity to prove otherwise.
"[T]he punitive aspect of the sentence imposed on the defendant is deemed to be satisfied by the time the parole eligibility date is reached." Kosmin v. New Jersey State Parole Bd., 363 N.J. Super. 28, 40-41 (App. Div. 2003). Further, "[s]ince the statute creates a presumption of release on the parole eligibility date, the decision not to release must be regarded as arbitrary if it is not supported by a preponderance of evidence in the record." Id. at 42. See also State Parole Board v. Cestari, 224 N.J. Super. 534, 547-48 (App. Div.), certif. denied, 111 N.J. 649 (1988).
In this case, we are persuaded that the agency's decision is not supported by the evidence and is thus arbitrary. Defendant is a first-time, non-violent offender who, on this record, has been a model prisoner. He has taken courses designed to better himself and has helped his fellow inmates with their GED studies. Yet, instead of crediting his efforts, the agency faults him for not taking "behavior modification," a therapy not apparently applicable to his situation. There are certainly cases in which an inmate's lack of insight into the offense, and failure to take advantage of therapy opportunities, are highly pertinent and justify further incarceration. However, in this case, the agency's explanations appear to be empty phrases invoked to justify a conclusion not supported by the evidence. Consequently, we cannot defer to the agency's decision and we reverse the denial of parole. We remand this matter to the agency for no more than two weeks to set conditions of parole, if any are required beyond the conditions of his Federal parole. Defendant shall be released no later than two weeks from the date of issuance of this opinion.