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Clay v. New Jersey State Parole Board

May 17, 2010

DONALD CLAY, APPELLANT,
v.
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.



On appeal from the New Jersey State Parole Board.

The opinion of the court was delivered by: R. B. Coleman, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 8, 2009

Before Judges R. B. Coleman and Graves.

Donald Clay is a thirty-two year old inmate currently incarcerated at South Woods State Prison in Bridgeton who is appealing from a final agency decision of the New Jersey State Parole Board (the Board) denying him parole and imposing a ninety-six month future eligibility term (FET). We have considered Clay's arguments in light of applicable law, and we affirm the Board's decision.

Clay is serving an aggregate thirty-year prison sentence. The details of his conviction and sentencing under indictment number 96-12-0488 are as follows: twenty-five years imprisonment with a five-year parole disqualifier for first-degree carjacking in violation of N.J.S.A. 2C:15-2 (count one); eighteen years imprisonment served concurrently with count one for first-degree armed robbery in violation of N.J.S.A. 2C:15-1(a)(2) (count two); and, five years imprisonment served consecutively to counts one and two for third-degree escape in violation of N.J.S.A. 2C:29-5 (count eight). The sentence under indictment number 96-12-0488 is being served consecutively to an outstanding juvenile commitment for armed robbery that, as a result of Clay's escape, had not been completed by him.*fn1

Clay's only New Jersey conviction prior to that under indictment number 96-12-0488 was for the juvenile offense that occurred on August 22, 1995, in Atlantic City. On that date, Clay threatened a pizza delivery person with a handgun, demanding his money. The victim said that he had no money and offered Clay pizza instead. Clay then got into the victim's mini-van and backed-up, striking the victim. The victim managed to enter the van with Clay, and the motor vehicle was in an accident a short distance later. Clay fled the accident, but was later apprehended by the Atlantic City Police Department and charged with juvenile delinquency offenses (aggravated assault, armed robbery, and carjacking). On October 3, 1995, at age seventeen, Clay was sentenced to serve an indeterminate term of four years in a juvenile correctional facility; however, on May 3, 1996, he escaped from Warren Residential Community Home, to which he had been transferred.

On May 4, 1996, Clay approached two sisters removing items from the trunk of their car in White Township. He demanded that the sisters give him the keys to their car and pointed at them what they believed to be a gun under a white handkerchief. Noticing the keys were still inside the locking assembly of the trunk, Clay took the keys, entered the car, and drove away. The sisters called the police. Warren Residential Community Home was only a quarter mile away from the scene of the incident, and knowing Clay had escaped the day before, a Trooper showed the sisters his photo. They positively identified him as the person who stole their car.

On October 29, 1996, Clay was arrested in Orange County Florida by the Orange County Police Department on the offenses of grand theft motor vehicle, possession of twenty grams of marijuana, resisting an officer without violence and burglary of a dwelling. The New Jersey authorities were notified of Clay's custody status and a detainer was issued.

On December 11, 1996, a Warren County Grand Jury indicted Clay on charges of carjacking, armed robbery, robbery, possession of a weapon for an unlawful purpose, unlawful possession of a weapon (handgun), theft, aggravated assault and escape. Clay pled not guilty.

On March 5, 1997, Clay appeared in the Circuit Court of Orange County and, after a plea of nolo contendere, was sentenced to 172 days imprisonment in Orange County Jail with 127 days credit for time already served. After the completion of the Florida sentence, Clay was returned to New Jersey to serve the remainder of his juvenile offense sentence and to await trial on the offenses charged in indictment number 96-12-0488.

On August 18, 1998, Clay appeared for trial in Warren County Superior Court on indictment number 96-12-0488, and a jury found him guilty of carjacking, armed robbery, robbery, the amended charge of unlawful taking of means of conveyance, and escape. All remaining charges were dismissed.

When Clay became eligible for parole, a two-member Board panel considered his case on November 15, 2007. The panel denied parole and determined that Clay's lack of progress warranted an FET in excess of the presumptive twenty-seven month FET delineated in N.J.A.C. 10A:71-3.21(a)(1). Accordingly, the case was referred to a third Board member, pursuant to N.J.A.C. 10A:71-3.21(d)(1). On February 13, 2008, the now three-member Board panel determined that imposing a ninety-six month FET was appropriate in this case. Clay appealed that decision to the full Parole Board, which affirmed the denial of parole and the imposition of the ninety-six month FET. This appeal followed.

Clay contends that the Board: (1) falsified the documents submitted to the Appellate Division; (2) should not have considered any juvenile offenses; and, (3) was arbitrary and capricious in its imposition of the ninety-six month FET. The scope of judicial review of such administrative agency decisions is narrowly tailored. In re Taylor, 158 N.J. 644, 656 (1999). We must simply review whether there was sufficient credible evidence in the record to support the Board's conclusions. Ibid.; Clowes v. Terminix Int'l. Inc., 109 N.J. 575, 588 (1988); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). The Board's decisions are considered highly "'individualized discretionary appraisals,'" and consequently, the "Board 'has broad but not unlimited discretionary powers'" in reviewing an inmate's parole record and rendering a release decision. Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (Trantino VI) (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)). See also Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 9-10, 99 S.Ct. 2100, 2105, 60 L.Ed. 2d 668, 677 ...


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