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Nudge v. New Jersey State Parole Board

January 8, 2009

BENJAMIN NUDGE, APPELLANT,
v.
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued Telephonically November 17, 2008

Before Judges Winkelstein and Chambers.

Appellant, Benjamin Nudge, is an inmate at Northern State Prison in Newark. On January 16, 2007, the New Jersey State Parole Board affirmed a three-member panel's decision denying parole to appellant and establishing a sixty-month parole future eligibility term (FET). On September 6, 2007, following an appeal to this court, on motion by the Parole Board, we remanded to the Parole Board for additional proceedings. On October 17, 2007, a three-member panel issued a fifteen-page amended decision, again denying parole and imposing a sixty-month FET.

On appeal, appellant raises the following seven points for our consideration:

POINT I THE PAROLE BOARD ERRONEOUSLY PREMISED ITS DECISION ON THE ASSUMPTION THAT NUDGE WAS SERVING AN INDETERMINATE SENTENCE IMPOSED IN 1978 WHEN IN FACT HE WAS MAXED OUT ON THIS SENTENCE AND IS SERVING THE SENTENCE IMPOSED IN 1985. (NOT RAISED BELOW).

POINT II NUDGE DID NOT VIOLATE HIS PAROLE BY FAILING TO ADHERE TO HIS CURFEW AND BY FAILING TO REFRAIN FROM ALCOHOL USAGE. NUDGE IS CLAIMING ACTUAL INNOCENCE OF VIOLATING PAROLE.

POINT III THE PAROLE BOARD'S FINDINGS THAT NUDGE HAS NOT BENEFITED FROM THE OPPORTUNITIES ON COMMUNITY SUPERVISION AND THIS FAILED TO DETER HIS CRIMINAL BEHAVIOR IS ERRONEOUS. NUDGE DID NOT ENGAGE IN ANY CRIMINAL ACTIVITY WHILE LAST ON PAROLE.

POINT IV THE BOARD PANEL FAILED TO DOCUMENT THAT A PREPONDERANCE OF THE EVIDENCE INDICATES A SUBSTANTIAL LIKELIHOOD THAT NUDGE WILL COMMIT A CRIME IF RELEASED ON PAROLE.

POINT V THE RECORD DOES NOT SUPPORT THE CONCLUSION THAT NUDGE'S FAILURE TO ADMIT HIS GUILT OF THE 1985 OFFENSES MAKES HIM A LIKELY RECIDIVIST.

POINT VI THE IMPOSITION OF A SIXTY (60) MONTH PAROLE FUTURE INELIGIBILITY TERM BY THE THREE MEMBER PANEL WAS EXCESSIVE AND BASED ON ERRONEOUS FACTS.

POINT VII THE IMPOSITION OF A SIXTY (60) MONTH PAROLE FUTURE INELIGIBILITY TERM BY THE THREE MEMBER PANEL WAS CONTRARY TO N.J.A.C. 10A:71-7.17(b) AND N.J.A.C. 10A:71-7.17(f)(6).

In addressing these arguments, we apply the well-settled principle that parole board determinations are not to be reversed unless they are arbitrary or an abuse of discretion. Trantino v. N.J. State Parole Bd., 154 N.J. 19, 25 (1998). The standard for parole at the time appellant committed his offenses was whether there was "a substantial likelihood that the inmate will commit a crime under the law of this State if released on parole." Id. at 27 (quoting N.J.S.A. 30:4-123.56c (amended 1997)). In determining whether this standard has been met, we examine the record and determine whether the agency's findings could reasonably have been reached from the credible evidence in the record. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). Unless the parole board "'went so far wide of the mark that a mistake must have been made[,]'" its decision must not be ...


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