On appeal from a final decision of the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 1, 2009
Before Judges Graves and Sabatino.
Defendant Paul Williams was convicted of murder in 1972. Defendant's conviction stemmed from his participation in the robbery of a tavern, during the course of which an accomplice fatally shot the tavern owner. The court imposed upon defendant, who had a prior criminal record with multiple adult convictions, a life sentence.
In March 2007 defendant became eligible for parole consideration for the fifth time. A hearing officer referred the matter to a two-member panel of the Parole Board, which interviewed defendant and reviewed his parole file. That panel found, among other things, that defendant's institutional record "continues to raise concerns," and denied parole. The two-member panel also found significant a mental health evaluation of defendant, who has been diagnosed with paranoid schizophrenia, placing him at a high likelihood for recidivism. The two-member panel referred the matter to a three-member panel for consideration of an extended future eligibility term ("FET").
For the reasons set forth in a fifteen-page decision dated September 28, 2007, the three-member panel set a FET of fifty-four months. See N.J.A.C. 10A:71-3.21(d) (authorizing an extended FET beyond the twenty-seven month baseline FET). Among other things, the panel noted that defendant had committed ninety-one infractions during his period of confinement. The panel also took note of three asterisk-level offenses for violent behavior since defendant's last parole hearing in 2000. The panel additionally found that defendant lacked insight into his criminal behavior and minimized his violent tendencies.
Defendant administratively appealed the panels' decisions to the full Parole Board. On August 6, 2008, the Board affirmed the denial of parole and the fifty-four month new FET. The Board agreed with the panels that there is "a substantial likelihood that [defendant] would commit a crime if released on parole at this time." See N.J.S.A. 30:4-123.53(a).
Defendant now appeals, claiming that the Board's decision is arbitrary, capricious, and unconstitutional. Among other things, he alleges that he has not committed any more institutional infractions since he was diagnosed with paranoid schizophrenia. He also maintains that the Board failed to take into account that he was taking psychotropic medications at the time of his parole hearing and that the medications affected his ability to show remorse.
Our standard of review of administrative decisions of the Parole Board is limited, and "grounded in strong public policy concerns and practical realities." Trantino v. N.J. State Parole Bd., ("Trantino V") 166 N.J. 113, 200 (2001). "The decision of a parole board involves 'discretionary assessment[s] of a multiplicity of imponderables....'" Id. at 201 (alteration in original) (citing Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 10, 99 S.Ct. 2100, 2105, 60 L.Ed. 2d 668, 677 (1979)). "To a greater degree than is the case with other administrative agencies, the Parole Board's decision-making function involves individualized discretionary appraisals." Ibid. (citing Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 358-59, certif. denied, 63 N.J. 583 (1973)). Consequently, our courts "may overturn the Parole Board's decisions only if they are arbitrary and capricious." Ibid. We do not disturb the Board's factual findings if they "could reasonably have been reached on sufficient credible evidence in the whole record." Id. at 172 (quoting Trantino v. N.J. State Parole Bd. ("Trantino IV"), 154 N.J. 19, 24 (1998) (quoting N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.), certif. denied, 111 N.J. 649 (1988))).
Evaluated by these well-established review standards, we are satisfied that the Board's decision in this case is amply supported by substantial credible evidence, and that the Board's imposition of a fifty-four month FET is neither arbitrary nor capricious. We also note that defendant's arguments seeking mitigation because of his mental illness and the effects of his psychotropic medication should have been raised administratively before the panels and the Board, and should not have been presented for the first time on appeal. Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973). The balance of defendant's arguments, including his claims of unconstitutionality, lack sufficient merit to discuss in this opinion. R. 2:11-3(e)(1)(D) and (E).
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