On appeal from a Final Agency Decision of the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 20, 2008
Before Judges Carchman and Sabatino.
Darren Boykins, currently incarcerated at Northern State Prison, appeals the Parole Board's final agency decision of November 1, 2007. In its decision, the Board established a Future Eligibility Term ("FET") for appellant of 120 months. We affirm.
After a jury trial, defendant was convicted of murder and other crimes arising out of an armed robbery of a carpet store in Newark on May 22, 1981. During the course of the robbery, appellant shot one of the store owners fatally in the midsection, took a roll of bills from the victim's pocket, and fled the scene with an accomplice.
Appellant has an extensive history of prior offenses as a juvenile and an adult, including convictions for armed robbery and the possession of a dangerous weapon. At the time he committed the murder, appellant was on parole for the prior armed robbery. At sentencing, the court imposed a life term, with a mandatory minimum period of confinement of twenty-five years.
Appellant first became eligible for parole consideration in August 2006. Following a hearing, a two-member Board panel denied appellant parole, finding that numerous factors weighed strongly against his release. Those factors included, among other things, appellant's extensive and repetitive criminal history; his failure to respond favorably to prior opportunities for probation and parole; the voluminous number of disciplinary infractions that appellant has committed while in prison, including assaults with a weapon; and appellant's denial and lack of insight into his violent behavior. As part of its analysis, the two-member panel duly considered appellant's submissions in mitigation, including his participation in certain institutional programs. The two-member panel referred the matter to a three-member panel to consider the imposition of an FET outside of the regular administrative guidelines.
The three-member panel essentially adopted the analysis of the two-member panel. It concluded that appellant "continue[s] to remain a substantial threat to public safety." Consequently, the three-member panel determined that "the factors supporting the denial of parole, collectively, are of such a serious nature as to warrant the setting of a future parole eligibility term which differs from the presumptive term of twenty-seven (27) months," and that "a minimum of a one hundred twenty (120) month future parole eligibility term . . . is necessary in order to address [appellant's behavioral] issues . . . ."
After his administrative request for reconsideration of the panels' rulings was denied, appellant sought review by the full Board. On November 1, 2007, the Board issued a final decision affirming the denial of parole and the 120-month FET. The Board rejected appellant's various procedural and substantive objections, including his claims that he had been denied due process, that he was denied access to confidential information, that his FET was unjustifiably outside of the regular administrative guidelines and excessive, and that the panels' disposition was otherwise arbitrary and capricious. The Board noted that the record reflects "a preponderance of evidence that there is a substantial likelihood that you would commit a crime if [you were] released at this time." Moreover, the Board found that the three-member panel "appropriately established" the 120-month FET with adequate reasons.
In his brief filed with this court, appellant contends that
(1) the 120-month FET was "based upon evidence that was inaccurate and unfounded"; (2) the pertinent FET regulation is "void for vagueness and unconstitutional"; and (3) the Board and the parole panels denied him due process, by relying upon "prejudicial information in the record" and by rendering successive decisions that he contends are "arbitrary, capricious, and unreasonable and unfair."
More specifically, appellant contends that the panels overstated his disciplinary infractions as 140, and that he actually has forty-eight. He asserts that many of his infractions are the result of him acting out due to "psychiatric symptoms." Appellant also stresses that he has not received a disciplinary infraction since November 1997. He further contends that the 120-month FET is an unjustified departure from the presumptive guidelines.
The Board maintains, in response, that its decision was adequately supported by substantial evidence in the record demonstrating that appellant is likely to re-offend if he were released. With respect to appellant's lack of recent infractions, the record indicates that he was placed in a special need unit outside of the general population after 1997, thereby limiting his opportunities for wrongdoing. The Board also emphasizes that appellant has significant behavioral issues, as illustrated by the fact that he contended at his parole hearing that the Central Intelligence Agency has been reading his mind. The ...