June 16, 2010
LOUIS WATLEY, APPELLANT,
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.
On appeal from a Final Agency Decision of the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 25, 2010
Before Judges Skillman and Gilroy.
Appellant Louis Watley appeals from the November 26, 2008 final decision of the New Jersey State Parole Board (the Board) that denied him parole and established a twenty-seven month future eligibility term (FET). We affirm.
Appellant became eligible for parole for a third time in May 2007. Because the procedural history leading to the denial of parole that formed the basis of this appeal is discussed in another unreported opinion simultaneously filed with this opinion, Watley v. New Jersey Department of Corrections, No. A-0217-08 (App. Div. 2010) (slip op. at 2-4), it is unnecessary for us to detail that history here.
On April 24, 2008, a two-member Board Panel denied parole and established a twenty-seven month FET, determining that "a substantial likelihood exists that [appellant] would commit a new crime if released on parole at this time." In so doing, the Panel based its decision on appellant's prior criminal record; appellant's incarceration for multi-crime convictions; appellant's prior opportunities on probation failed to deter his criminal behavior; and appellant's insufficient problem resolution, including a lack of insight into his criminal behavior, denial of the crimes committed, and minimization of his criminal conduct. On November 26, 2008, the Board affirmed the Panel's decision.
On appeal, appellant argues:
PANEL'S DETERMINATION WAS FLAWED WHERE ITS BASIS WAS ROOTED IN A TAINTED PSYCHOLOGICAL REPORT ORDERED BY A PANEL MEMBER WHO EXHIBITED BIAS.
PAROLE PANEL AND BOARD ERRED IN DENYING PETITIONER RELIEF, WHERE THOSE ADMINISTRATIVE OFFICES VIOLATED STATE [STATUTE] AND [ADMINISTRATIVE] CODES BY FAILING TO CONSIDER MATERIAL FACTS, AND FAILED TO RECEIVE AS EVIDENCE RELEVANT AND RELIABLE DOCUMENTS. N.J.A.C. 10a:71-4.1(a)(1); N.J.S.A. 30:4-123.55C.
A. MITIGATING FACTOR OF "NO PRIOR CRIMINAL RECORD OR MINIMAL CRIMINAL RECORD" WAS NEITHER CHECKMARKED OR TAKEN INTO CONSIDERATION TO ARRIVE AT ADULT PANEL'S DETERMINATION.
B. THE ADULT PANEL FAILED TO ACKNOWLEDGE OR TAKE INTO CONSIDERATION A CONFIDENTIAL REPORT WRITTEN BY THE PROSECUTOR CONFIRMING THE STATE DID NOT OBJECT TO PETITIONER SECURING PAROLE.
C. CONTRARY TO ADULT BOARD'S CONTENTION, THE MITIGATING FACTOR "RISK ASSESSMENT EVALUATION" WHICH WAS NOT CHECKED WAS NOT ONLY WARRANTED BUT HAS ADDED RELEVANCE IN THIS MATTER.
D. MITIGATING EVIDENCE COUNTERING THE  TAINTED PSYCHOLOGICAL REPORT OF DECEMBER 7, 2007 FROM THE ADTC [WAS] NOT CONSIDER[ED] BY THE PANEL IN ITS DETERMINATION.
ADULT PANEL AND BOARD ERRED BY ESTABLISHING A FUTURE ELIGIBILITY TERM WHICH WAS OUTSIDE THE GUIDELINE AND WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE.
ADULT PANEL DECISION AND PAROLE [BOARD'S] AFFIRMATION DEMONSTRATE THERE WAS NO RATIONAL GROUNDS SUPPORTING THEIR OPINIONS MAKING HOLDINGS ARBITRARY AND CAPRICIOUS.
Our role in reviewing the decision of an administrative agency is limited. Circus Liquors, Inc. v. Middletown Twp., 199 N.J. 1, 9 (2009); In re Taylor, 158 N.J. 644, 656 (1999). We will not disturb the determination of an administrative agency absent a showing that it was arbitrary, capricious, or unreasonable; that is, 1) "the agency's action violates expressed or implied legislative policies"; 2) "the record [does not] contain substantial evidence to support the findings on which the agency based its action"; and 3) "in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors." Circus Liquors, supra, 199 N.J. at 10 (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)). See also In re Musick, 143 N.J. 206, 216 (1996); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). Decisions of administrative agencies carry with them a presumption of reasonableness. City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S.Ct. 400, 66 L.Ed. 2d 245 (1980). An appellate court may not reverse an agency's determination "even if [the] court may have reached a different result had it been the initial decision maker." Circus Liquors, supra, 199 N.J. at 10. Stated otherwise, a court "may not simply 'substitute its own judgment for the agency's.'" Ibid. (quoting In re Carter, 191 N.J. 474, 483 (2007)). An agency's decision can be set aside only "if there exists in the reviewing mind a definite conviction that the determination below went so far wide of the mark that a mistake must have been made." N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.), certif. denied, 111 N.J. 649 (1988) (quotation omitted).
Parole Board decisions are considered "highly 'individualized discretionary appraisals.'" Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)). Consequently, "the Board has broad but not unlimited discretionary powers" in reviewing an inmate's parole record and rendering a release decision. Ibid. (quotation omitted). The administrative regulations contain twenty-three factors for the Board's consideration in making parole decisions. N.J.A.C. 10A:71-3.11(b). From those factors, the Board must consider those "applicable in each case." McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 561 (App. Div. 2002).
We have considered each of appellant's arguments in light of the record and applicable law. We are satisfied that the arguments are without sufficient merit to warrant a discussion in a written opinion. R. 2:11-3(e)(1)(E). We conclude that the Board's decision is supported by sufficient credible evidence in the record. R. 2:11-3(e)(1)(D).
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