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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...