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Hebden v. New Jersey State Parole Board

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 17, 2010

KENNETH HEBDEN, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 26, 2010

Before Judges Rodríguez and Chambers.

Defendant Kenneth Hebden was convicted by a jury of murder, N.J.S.A. 2C:11-3, for the killing of an eleven-year-old boy who had been beaten and stabbed to death. The child was the son of a friend of defendant. On April 13, 1981, the trial court sentenced defendant to life imprisonment for this crime and did not fix a minimum parole date. According to defendant, the crime occurred when he was under the influence of alcohol and angry at the child's parents. He appeals the decision of the New Jersey State Parole Board (the Board) denying him parole and fixing a sixty month future parole eligibility term. We affirm, concluding that these determinations fall within the discretion of the Board.

In 1995, defendant was denied parole and was given a future parole eligibility term of forty-eight months. In 1998, parole was denied again and a thirty-six month future parole eligibility term was established. In 2001, parole was denied and a 120 month future parole eligibility term fixed. In 2004 parole was denied, and in 2005, a future parole eligibility term of seventy-two months was imposed.

In 2008, defendant came up for parole for the fifth time. On April 21, 2008, a two-member board panel issued its decision denying defendant parole, determining that "a substantial likelihood exists that you would commit a new crime if released on parole at this time." In reaching this conclusion, the two member panel relied in part on its interview with defendant, a risk assessment evaluation and a confidential psychological evaluation of defendant. The panel concluded that defendant lacked insight into his criminal behavior, minimized his conduct, had not sufficiently addressed his substance abuse problem, and "[d]oes not present[ly]... possess the appropriate skills to remain free of alcohol use and control his anger/aggressive behavior."

Thereafter, a three member board panel imposed a sixty month future parole eligibility term which was beyond the administrative guidelines of twenty-seven months for a future parole eligibility term. N.J.A.C. 10A:71-3.21(a)(1). The three member panel issued a fifteen page opinion dated August 27, 2008 explaining this decision. Among the factors it noted were defendant's lack of insight into his violent behavior exhibited by his tendency to portray himself as a victim and weaving "an implausible tale" about what happened and defendant's tendency to minimize his violent behavior. The panel also expressed its concern that defendant had not adequately addressed his substance abuse problem.

Defendant appealed these determinations, and in a written decision dated February 4, 2009, the full Board affirmed the denial of parole to defendant and the sixty month future parole eligibility term. Defendant appeals that decision to this court.

On appeal, defendant notes that he was thirty years old when he committed the offense and that he has now been imprisoned for twenty-nine years. During that period, he has had only one disciplinary infraction for "failure to comply with a written rule." Defendant further contends that he had no prior adjudication of juvenile delinquency or criminal conviction.*fn1

In reviewing decisions by an agency, we must examine the record to 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). We will not reverse a decision of the Board unless it is arbitrary or an abuse of discretion. Trantino v. N.J. State Parole Bd., 154 N.J. 19, 25 (1998). In our analysis we recognized that the Board's "determinations are highly 'individualized discretionary appraisals.'" Ibid. (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)). Unless the Board "went so far wide of the mark that a mistake must have been made," its decision must not be disturbed. N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.) (quoting 613 Corp. v. State of N.J., Div. of State Lottery, 210 N.J. Super. 485, 495 (App. Div. 1986)), certif. denied, 111 N.J. 649 (1988).

We have thoroughly reviewed the record, including the confidential assessments of defendant. We also have carefully considered the arguments of defendant, the explanation by the Board and its panels for the decisions that have been made, and the applicable law. Under the particular circumstances presented in this case, we cannot say that the Board's decision was arbitrary or an abuse of discretion.

Affirmed.


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