August 7, 2008
MOESTAFA BALDEW, APPELLANT,
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.
On appeal from a final decision of the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 28, 2008
Before Judges Graves and Yannotti.
Appellant Moestafa Baldew appeals from a final determination of the New Jersey State Parole Board (Board), dated February 21, 2007, which denied appellant's application for parole and established a twenty-month future parole eligibility term (FET). We affirm.
Appellant is an inmate at South Woods State Prison in Bridgeton, New Jersey. He is serving a twelve-year term of incarceration, with a five-year period of parole ineligibility, for first-degree possession of a controlled dangerous substance (CDS) with intent to distribute.
It appears that the Narcotics Task Force in the Office of the Hudson County Prosecutor received information from a confidential informant that appellant was engaged in a large-scale scheme involving the distribution of CDS, specifically a drug called Ecstasy. The Task Force and other law enforcement authorities commenced an investigation, which resulted in appellant's arrest on January 10, 2002. At the time of his arrest, appellant was in possession of 25,000 tablets of Ecstasy.
Appellant first became eligible for parole on January 9, 2007. He received his initial parole hearing on September 15, 2006. Because of the serious nature of the offense for which appellant was incarcerated, the hearing officer referred the matter to a two-member adult panel of the Board. The panel considered the matter on September 22, 2006. In its notice of decision dated September 22, 2006, the panel denied parole and established a twenty-month FET. The panel found that there was a reasonable expectation that appellant would violate the conditions of parole if released on parole.
In its decision, the panel noted several mitigating factors, specifically appellant's lack of a prior criminal record, participation in programs specific to his behavior, participation in institutional programs, and "[a]verage to above average institutional report(s)." As reasons for denying parole, the panel found that there had been insufficient problem resolution, a lack of insight by appellant in his criminal behavior, and a minimization of that criminal conduct.
The panel additionally noted that appellant blamed his criminal activity on a gambling debt, and did not have "an adequate parole plan to assist in reintegration into the community." The panel suggested that appellant participate in institutional programs addressed to his criminal behavior, and complete moral recognition training.
Appellant filed an administrative appeal to the Board. Appellant asserted the record did not establish that he would violate the conditions of parole if released because he was subject to a federal detainer and faced potential deportation. Appellant also asserted that the panel had been "very selective" in its interpretation of the record. Appellant stated that he has been "infraction free" and this indicated he was "a prime candidate for parole release." Appellant also said that his pre-parole reports and the mitigating factors noted by the panel "are all clear indicators" of his character and show that he has "the propensity for being a law abiding person."
In addition, appellant asserted that the panel had "misconstrued material facts" regarding his offense. He stated that the panel was under the impression that he was earning $750,000 on the drugs. Appellant said that, although that was the "street value of the drugs confiscated[,]" "he never saw any money whatsoever." Appellant stated that he was being used as a "mule" in order "to pay off [a] gambling debt."
Appellant also asserted that the panel had erroneously based its parole decision on his ability to pay restitution. Appellant stated that the panel had asked him whether he would revert to his former criminal conduct in order to pay his gambling debt, which defendant said was $15,000. Appellant said that he would pay the debt "by working and paying [it off] little by little." Appellant added that if the person to whom the money was owed asked him for the money, he would call the police.
The Board issued a final determination on February 21, 2007. The Board stated:
In regard to your contention that the Panel failed to consider material facts, the full Board notes that the Panel was fully aware of your immigration detainer, however[,] the Panel determined that you were not suitable for parole release at this time. In addition, the full Board notes with regard to your contention that the Adult Panel's decision was arbitrary and capricious, an arbitrary and capricious action has been defined as one which is willful and unreasoning, without consideration and is in disregard of circumstances. The full Board found that the Adult Panel's decision is based on sufficient credible evidence in the record and therefore, its decision was not found to be arbitrary or capricious.
In reference to your contention that significant information which was not considered warrants review of the Panel's decision, the full Board notes that the Panel reviewed and considered the aggregate of all relevant material facts; this includes your pre-parole report and program participation.
In regard to your contention that the Panel failed to consider material facts in relation to your current offense, the full Board notes that you have provided no evidence to support your claim that the Panel misconstrued evidence and none exists on the record. Therefore, your contention is without merit.
In reference to your contention that the Panel predicated a parole denial based on your inability to pay restitution, the full Board notes that the judge did not impose restitution. However, the full Board also notes that although the Panel was aware of your "drug debt" there is no indication on the record that this influenced the Panel to deny parole and impose a future eligibility term. Therefore, your contention is without merit.
The Board concluded that the panel had documented by a preponderance of evidence "that there is a reasonable expectation that [appellant] would violate the conditions of parole if released on parole at this time." This appeal followed.
Appellant essentially raises the same arguments that he raised in his administrative appeal. He asserts that it is "quite apparent" that he cannot violate the conditions of parole if he is deported to another country. He maintains that the panel elected to "pick and choose" the evidence that supported its decision to deny parole and then "intentionally misconstrued the evidence [that] it had."
The standard of review that governs our consideration of this appeal is well established. "In light of the executive function of administrative agencies, judicial capacity to review administrative actions is severely limited." In re Musick, 143 N.J. 206, 216 (1996) (citing Gloucester County Welfare Bd. v. N.J. Civil Serv. Comm'n, 93 N.J. 384, 390 (1993)). The judiciary can intervene only in "rare circumstances in which agency action is clearly inconsistent with its statutory mission or other state policy." Ibid.
In reviewing a final determination of the Parole Board, we consider: 1) whether the agency's action is consistent with the applicable law; 2) whether there is substantial credible evidence in the record as a whole to support the findings upon which the agency acted; and 3) whether in applying the law to the facts, the agency clearly erred in reaching a conclusion that could not have been reasonably made based on the relevant facts. Trantino v. N.J. State Parole Bd., 166 N.J. 113, 172 (2001).
The Supreme Court has recognized that the Board's decisions are highly "'individualized discretionary appraisals.'" Id. at 173 (quoting from Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)). Indeed, parole release determinations depend "on an amalgam of elements, some of which are factual but many of which are purely subjective appraisals by the Board members based on their experience with the difficult and sensitive task of evaluating the advisability of parole release." Greenholtz v. Neb. Penal Inmates, 442 U.S. 1, 9-10, 99 S.Ct. 2100, 2105, 60 L.Ed. 2d 668, 677 (1979).
Thus, decisions of the Board necessarily involve discretionary assessments of "'a multiplicity of imponderables, entailing primarily what a man is and what he may become rather than simply what he has done'". Id. at 10, 99 S.Ct. at 2105, 60 L.Ed. 2d at 677 (quoting Kadish, The Advocate and the Expert, 45 Minn. L. Rev. 803, 813 (1961)). We have recognized that, in making these determinations, the Board's discretionary powers are broad but not unlimited and the Board's decisions remain subject to judicial review for arbitrariness. Trantino, supra, 166 N.J. at 173 (citing Monks v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971)).
Because appellant's offense was committed in 2002, the standard that governs a decision on his parole release is that which is set forth in N.J.S.A. 30:4-123.53(a). Under that statute, an inmate who is eligible for parole release must be paroled unless the Board determines, "by a preponderance of evidence . . . that there is a reasonable expectation that the inmate will violate the conditions of parole . . . if released on parole at that time." Ibid.
We are convinced from our review of the record that there is substantial credible evidence to support the Board's decision to deny defendant's application for parole release. Notwithstanding appellant's arguments to the contrary, the panel considered all relevant factors in making its parole determination. Therefore, we affirm substantially for the reasons stated by the Board in its final decision dated February 21, 2007. We add the following brief comment.
Appellant contends that the Board erred by finding that it was reasonable to expect that he would violate the conditions of parole if he is released because he is subject to a federal detainer and faces deportation. However, the record does not establish that he will, in fact, be deported. Moreover, the fact that appellant might be deported does not mean that he otherwise qualifies for parole under N.J.S.A. 30:4-123.53(a), taking into account all relevant evidence, including the factors set forth in N.J.A.C. 10A:71-3.11(b). In our view, the evidence before the panel and the Board fully supports the finding that defendant does not meet the standard for parole release under N.J.S.A. 30:4-123.53(a) at this time.
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