December 11, 2008
PRADEEP MADAN, APPELLANT,
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.
On appeal from the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 28, 2008
Before Judges Parker and LeWinn.
Appellant Pradeep Madan appeals from a decision by the New Jersey Parole Board (the Board) rendered on August 30, 2007, affirming the adult panel's decision to deny him parole pursuant to N.J.A.C. 10A:71-3.18(f). The Board also affirmed the adult panel's imposition of a thirty-six month future eligibility term. For the reasons that follow, we affirm.
Appellant is serving an aggregate term of twenty years with a seven-year period of parole ineligibility for first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), and third-degree escape, N.J.S.A. 2C:29-5(a). He is also serving a concurrent term of five years for possession and distribution of drugs in a school zone.
Appellant appeared before a two-member adult panel on March 16, 2007. At that hearing, appellant described the homicide as follows: he was walking across a street when a car driven by the victim turned into the intersection against the light and stopped just short of hitting him; the victim exited his car and the two engaged in a verbal altercation, which escalated into a physical fight; appellant then "introduced [his] knife . . . . It was just something that happened."
In appellant's pre-sentence investigation report, the probation officer described the "offense circumstances" as follows:
On October 4th, 1996 [appellant] was crossing the street . . . when [the victim] stopped just short of hitting the [appellant] and two other juveniles with his car . . . . Angered, the trio started an argument with [the victim] and a female passenger. Words were exchanged and the victim . . . got out of his car. These words escalated into a physical confrontation. The trio beat up on [the victim.] The [appellant] stabbed [the victim] with a knife in the heart[,] delivering a fatal blow. Once arrested [appellant] managed to escape from the Hudson County Prosecutor[']s investigators. He remained at large until his arrest in New York City, . . . on armed robbery charges.
A psychological evaluation of appellant, conducted on December 27, 2006, stated that he demonstrated no remorse for the homicide and, in fact, blamed the victim.
At the conclusion of the hearing, the two-member panel denied parole and established a thirty-six month future eligibility term based upon (1) appellant's interview; (2) documentation in his file and (3) the psychological evaluation.
In his appeal to the Board, appellant argued that the panel's decision was arbitrary and capricious because the panel improperly relied upon a letter submitted by the Hudson County Prosecutor, and the panel incorrectly concluded that appellant was the aggressor in the crime. The Board rejected those arguments on the grounds that the Prosecutor's Office was permitted to submit a letter objecting to parole and the panel was required to consider such a letter pursuant to N.J.A.C. 10A:71-3.11(b)21. The Board further found that the record did not support appellant's version of his role in the homicide.
Therefore, the Board affirmed the panel's decision.
Appellant presents the following issues for our consideration:
THE CIRCUMSTANCES UNDER WHICH APPELLANT WAS DENIED A CHANCE TO BE PAROLE[D] ON HIS MARCH 16, 2007 ELIGIBILITY DATE VIOLATED HIS RIGHTS TO THE STATE FAIRNESS & RIGHTNESS DOCTRINE BECAUSE THE FULLBOARD ERR[ED] WHEN IT AFFIRMED THE ADULT PANEL ACTION SINCE IT DOCUMENTED THAT HE WILL BE DEPORTED TO HIS NATIVE COUNTRY OF GUYANA, THEN TURN[ED] AROUND AND DEN[IED] HIM A FAIR CHANCE TO BE RELEASE[D] ON PAROLE BY STATING THAT THERE IS A SUBSTANTIAL LIKELIHOOD THAT HE WILL COMMIT ANOTHER CRIME IF RELEASE[D] IS FUNDAMENTALLY FLAWED AND CONSTITUTES A[N] ARBITRARY, CAPRICIOUS AND UNREASONABLE DECISION.
A. THE FULLBOARD SHOULD HAVE GRANTED APPELLANT'S REQUEST IN CONNECTION WITH THE ADULT PANEL DECISION TO DENY PAROLE BECAUSE [THE] HUDSON COUNTY PROSECUTOR'S OFFICE SUBMITTED A LETTER THAT SUBSTANTIALLY AFFECTED THE DETERMINATION FOR HIM TO BE RELEASE[D] ON PAROLE, SINCE THE LETTER CONTAINED STATEMENTS THAT INFRINGED UPON HIS RIGHTS AND CONSTITUTE[D] A[N] ARBITRARY, CAPRICIOUS AND UNREASONABLE RESULT [AND] THUS, OFFENDS NOTIONS OF ADMINISTRATIVE FAIRNESS UNDER U.S. CONST. AMEND. XIV, N.J. CONST. ART. I, AND N.J. FAIRNESS & RIGHTNESS DOCTRINE.
B. THE FULLBOARD ACTION IN AFFIRMING THE ADULT PANEL, DECISION TO DENY PAROLE WHEN IT ADMINISTERED STATEMENTS THAT SUGGEST APPELLANT WAS THE AGGRESSOR IN HIS CRIMINAL CASE AND TO DENY PAROLE WITH THOSE FACTS IS ARBITRARY, CAPRICIOUS AND UNREASONABLE [AND] THEREFORE, OFFENDS NOTIONS OF ADMINISTRATIVE FAIRNESS UNDER U.S. CONST. AMEND. XIV, N.J. CONST. ART.I, AND N.J. FAIRNESS & RIGHTNESS DOCTRINE BECAUSE THE TRIAL INFORMATION DEMONSTRATES OTHERWISE.
C. THE PAROLE FULLBOARD DECISION IN AFFIRMING THE ADULT PANEL REASONS TO IMPOSE A THIRTY-SIX MONTH PAROLE INELIGIBILITY TERM AGAINST THE APPELLANT WAS AN ABUSE OF DISCRETION [AND] THUS, OFFENDS NOTIONS OF ADMINISTRATIVE FAIRNESS UNDER U.S. CONST. AMEND. XIV, N.J. CONST. ART. I, AND N.J. FAIRNESS & RIGHTNESS DOCTRINE.
BECAUSE SOUTH WOODS STATE PRISON WAIT-LISTED THE APPELLANT UP UNTIL HIS PAROLE HARING HE WAS PRECLUDED FROM ADMISSION INTO CRUCIAL PROGRAMS WHICH ARE ALWAYS RECOMMENDED BY PAROLE PANEL AS AN ATTEMPT TO HELP STOP CRIMINAL BEHAVIOR UPON RELEASE AND INSTITUTION FAILURE TO SECURE PLACEMENT IS A[N] UNFAIR PRACTICE [AND] THUS, OFFENDS NOTIONS OF ADMINISTRATIVE FAIRNESS UNDER U.S. CONST. AMEND. XIV, N.J. CONST. ART. I, AND N.J. FAIRNESS & RIGHTNESS DOCTRINE.
THE APPELLANT['S] PAROLE HEARING WAS BASED ON CONFIDENTIAL MATERIALS THAT PLAYED A SUBSTANTIAL ROLE IN PRODUCING THE ADVERSE DECISION AGAINST HIM[,] THEREFORE HE WISH[ES] TO RESERVE THE RIGHT TO RAISE ARGUMENTS REGARDING THE EVIDENCE USED IF THIS COURT RULE[S] THAT THE NONDISCLOSURE OF THE DOCUMENTS WAS IMPROPER.
The Parole Board has broad discretion to determine whether an inmate should be released on parole. O'Neal v. N. J. State Parole Bd., 149 N.J. Super. 174, 182 (App. Div.) (citation omitted), appeal dismissed, 75 N.J. 590 (1977). "Courts must give great weight to the expertise of the Board in dealing with parole decisions and should not intervene therein unless it clearly and convincingly appears that the Board abused its discretion." Ibid. A parole board decision is a highly individualized discretionary appraisal. Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973). Although parole boards have discretionary powers they are not unlimited and "are always judicially reviewable for arbitrariness." Monks v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971). A parole board's decision "does not engender a more exacting standard of judicial review than that applicable to other administrative agency decisions."
Trantino v. N.J. Parole Bd., 154 N.J. 19, 25 (1998) (Trantino IV). As a reviewing court we must examine:
(1) whether the agency's action violates express or implied legislative policy, i.e., did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.
[Trantino v. N.J. State Parole Bd., 166 N.J. 113, 172 (2001) (quoting Trantino IV, supra, 154 N.J. at 24).]
We conclude that the Board's action here "follow[ed] the law[,]" is supported by "substantial evidence" and is free of error. Ibid.
Appellant contends that the Board's conclusion that there is a substantial likelihood that he would commit another offense if paroled is immaterial since he faces deportation to Guyana upon his release from custody. Appellant does not challenge the Board's conclusions regarding his lack of insight and remorse.
Rather, he objects to the Board's consideration of certain documentary evidence as arbitrary and capricious.
We reject these arguments. As noted, the Board conducts an "individualized discretionary appraisal." Beckworth, supra, 62 N.J. at 359. As set forth in N.J.A.C. 10A:71-3.11:
(a) Parole decisions shall be based on the aggregate of all pertinent factors, including material supplied by the inmate and reports and material which may be submitted by any persons or agencies which have knowledge of the inmate.
(b) The hearing officer, Board panel or Board shall consider the following factors and, in addition, may consider any other factors deemed relevant:
1. Commission of an offense while incarcerated.
2. Commission of serious disciplinary infractions.
3. Nature and pattern of previous convictions.
4. Adjustment to previous probation, parole and incarceration.
5. Facts and circumstances of the offense.
6. Aggravating and mitigating factors surrounding the offense.
7. Pattern of less serious disciplinary infractions.
8. Participation in institutional programs which could have led to the improvement of problems diagnosed at admission or during incarceration. This includes, but is not limited to, participation in substance abuse programs, academic or vocational education programs, work assignments that provide on-the-job training and individual or group counseling.
9. Statements by institutional staff, with supporting documentation, that the inmate is likely to commit a crime if released; 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.
10. Documented pattern of relationships with institutional staff or inmates.
11. Documented changes in attitude toward self or others.
12. Documentation reflecting personal goals, personal strengths or motivation for law-abiding behavior.
13. Mental and emotional health.
14. Parole plans and the investigation thereof.
15. Status of family or marital relationships at the time of eligibility.
16. Availability of community resources or support services for inmates who have a demonstrated need for same.
17. Statements by the inmate reflecting on the likelihood that he or she will commit another crime; the failure to cooperate in his or her own rehabilitation; or the reasonable expectation that he or she will violate conditions of parole.
18. History of employment, education and military service.
19. Family and marital history.
20. Statement by the court reflecting the reasons for the sentence imposed.
21. Statements or evidence presented by the appropriate prosecutor's office, the Office of the Attorney General, or any other criminal justice agency.
22. Statement or testimony of any victim or the nearest relative(s) of a murder victim.
23. The results of the objective risk assessment instrument.
The panel found, and the Board affirmed, that appellant was ineligible for parole for the following reasons: (1)"[p]rior criminal record [is] extensive and/or repetitive"; (2) "[n]ature of criminal record [is] increasingly more serious"; (3)"[p]resently incarcerated for multi[-]crime conviction"; (4) "[c]urrent opportunity . . . on . . . probation . . . terminated/revoked for the commission of new offense(s)"; (5) "[p]rior opportunit[ies] on . . . probation/parole . . . have failed to deter criminal behavior"; (6) "[p]rior opportunit[ies] on . . . probation . . . have been violated in the past"; (7) "[p]rior incarceration(s) did not deter criminal behavior"; and (8) "[i]nsufficient problem(s) resolution [s]pecifically [l]ack of insight into criminal behavior; [m]inimiz[ing] conduct; . . . [and not] taking responsibility" for his actions.
We conclude that the Board's decision to deny appellant parole is adequately supported by substantial credible evidence in the record as a whole. R. 2:11-3(e)(1)(D). Nevertheless, we add the following comments.
The question whether there is a substantial likelihood an inmate will commit another crime if released, although predictive of future conduct rather than a finding as to past conduct, is essentially factual in nature. Therefore, a reviewing court must determine whether this factual finding could reasonably had been reached on sufficient credible evidence in the whole record. Under this standard, the agency's decision will be set aside "if there exists in the reviewing mind a definite conviction that the determination below went so far wide of the mark that a mistake must have been made."
[N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.) (quoting 613 Corp. v. N.J. Div. of State Lottery, 210 N.J. Super. 485, 495 (App. Div. 1986), certif. denied, 111 N.J. 649 (1988).]
The fact that appellant is subject to deportation upon his release from custody has no bearing upon the Board's highly discretionary authority to determine when that release should properly occur. We concur with the State's argument that "[i]t would be unconscionable and egregious conduct for the Board to grant parole to an individual [solely] because he will be deported out of the United States, and no longer a threat to citizens of the United States even though [the Board] finds that the inmate is substantially likely to commit an offense [in another country] if paroled." This argument is without sufficient merit to warrant further discussion. R. 2:11- 3(e)(1)(E).
In light of the substantial reasons supporting the Board's decision, we also reject as wholly without merit appellant's contention that he was prejudiced by the lack of opportunity to participate in "programs . . . recommended . . . to help stop criminal behavior." The panel specifically noted, as a mitigating factor, that appellant had "[a]ttempt[ed] . . . to enroll and participate in program(s) but was not admitted."
Finally, we reject appellant's argument that the thirty-siX month future eligibility term is arbitrary and inconsistent with the Board's own regulations. N.J.A.C. 10A:71-3.21 specifically requires the Board to establish a future eligibility term whenever parole is denied to an inmate, and affords much discretion to the Board in setting the length of such a term.
Upon determining to deny parole to a prison inmate, a two-member adult Board panel shall, based upon the following schedule, establish a future parole eligibility date upon which the inmate shall be primarily eligible for parole.
Except as provided herein, a prison inmate serving a sentence for . . . manslaughter . . . shall serve 27 additional months.
The future parole eligibility dates . . . may be increased . . . by up to nine months, when, in the opinion of the Board panel, the severity of the crime for which the inmate was denied parole and the prior criminal record or other characteristics of the inmate warrant such adjustment.
[N.J.A.C. 10A:71-3.21(a)(1), (c).]
Based on the record, we conclude the Board did not abuse its discretion in imposing a thirty-six month future eligibility term.
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