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Fluker v. New Jersey State Parole Board

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 24, 2008

JOSEPH FLUKER, APPELLANT,
v.
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.

On appeal from a final agency decision of the New Jersey State Parole Board.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 14, 2008

Before Judges R. B. Coleman and Simonelli.

Appellant Joseph Fluker appeals from the July 26, 2007 final decision of respondent New Jersey State Parole Board (Board) denying him parole and establishing a thirty-six month future eligibility term (FET). We affirm.

Fluker is currently serving a life term sentence for a 1976 conviction for first degree murder, contrary to N.J.S.A. 2A:113-1, atrocious assault and battery, contrary to N.J.S.A. 2A:90-1 and robbery, contrary to N.J.S.A. 2A:141-1. Prior to July 5, 2005, Fluker had twice been paroled and was re-incarcerated for absconding from parole and for using controlled dangerous substances (CDS).

Fluker was again paroled on July 5, 2005. On May 10, 2006, his parole was revoked for absconding from parole, for failing to participate in random urine monitoring and out-patient drug counseling and for using CDS. He did not appeal that revocation.

Fluker was re-incarcerated and again became eligible for parole in 2007. A hearing officer reviewed Fluker's records and referred the matter to the Adult Panel (Panel) for a hearing pursuant to N.J.A.C. 10A:71-3.15(b). Because Fluker committed his offenses in 1976, the applicable standard of parole prohibited his release if there is a substantial likelihood that he would commit a new crime if released. N.J.S.A. 30:4-123.53a. After a hearing, the Panel denied parole and established a thirty-six month FET, concluding there was a substantial likelihood that Fluker would commit a new crime if released on parole at that time.

In rendering its decision, the Panel relied on a number of factors such as Fluker's prior criminal record, his present incarceration for a multi-crime conviction, the failure of his prior incarcerations and opportunities on parole to deter criminal behavior, his prior and present violations of parole, the revocation of his prior and present parole for absconding from parole and using CDS, his CDS abuse and failure to address his substance abuse problems, his lack of insight into his criminal behavior, his denial of the crimes, his minimizing his conduct and his lack of an adequate parole plan to assist in successful reintegration into the community. The Panel also considered mitigating factors such as Fluker's infraction-free record, his participation in programs specific to behavior, his average to above-average institutional reports and his attempts to enroll and participate in programs to which he was not admitted.

Fluker administratively appealed to the Board. The Board affirmed, finding that the Panel considered the aggregate of information and fully documented and supported its decision as required by N.J.A.C. 10A:71-3.11 and N.J.A.C. 10A:71-3.18(f). The Board concluded that the preponderance of evidence indicated a substantial likelihood that Fluker would commit a crime if released on parole at that time.

The actions of the Board, as an administrative agency, are presumed valid and reasonable. In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J. 306 (1994); Alevras v. Delanoy, 245 N.J. Super. 32, 35 (App. Div. 1990), certif. denied, 126 N.J. 330 (1991). Parole Board decisions are considered "highly'individualized discretionary appraisals.'" Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (Trantino VI) (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)). Consequently, "the Board'has broad but not unlimited discretionary powers'" in reviewing an inmate's parole record and rendering a release decision. Ibid. (quoting Monks v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971)). See also Greenholtz v. Neb. Penal Inmates, 442 U.S. 1, 9-10, 99 S.Ct. 2100, 2105, 60 L.Ed. 2d 668, 677 (1979) ("[t]he parole release decision... depends on an amalgam of elements, some of which are factual but many of which are purely subjective appraisals by the Board members based upon their experience with the difficult and sensitive task of evaluating the advisability of parole release.").

Our review of the Board's decision is limited to determining whether its findings could reasonably have been reached on the credible evidence in the record. N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.), certif. denied, 111 N.J. 649 (1988). We will not set aside the Board's decision unless we are convinced "'that the determination below went so far wide of the mark that a mistake must have been made.'" Ibid. (quoting 613 Corp. v. N.J. Div. of State Lottery, 210 N.J. Super. 485, 495 (App. Div. 1986)).

Based on our careful review of the record, we are satisfied the Board's denial of parole is amply supported by substantial credible evidence in the record. Based upon the aggregate factors considered by the Board, there is no doubt that Fluker will commit a new crime if released on parole.

We are also satisfied the Board's establishment of a thirty-six month FET is amply supported by substantial credible evidence in the record. The thirty-six month FET was appropriate under the circumstances and we perceive of no basis for a downward adjustment. N.J.A.C. 10A:71-3.21(a)1; N.J.A.C. 10A:71-3.21(c).

Affirmed.

20081024

© 1992-2008 VersusLaw Inc.



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