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Andre Johnson A/K/A v. New Jersey State Parole Board

December 7, 2010


On appeal from a Final Agency Decision of the New Jersey State Parole Board.

Per curiam.


Submitted November 17, 2010

Before Judges Gilroy and Nugent.

Appellant Andre Johnson appeals from the February 4, 2009 final decision of the New Jersey State Parole Board (the Board) that denied him parole and established a twenty-month future eligibility term (FET). We affirm.

On September 19, 2007, a Grand Jury charged defendant under Indictment No. 07-09-1479 with fourth-degree unlawful possession of a weapon (a knife), N.J.S.A. 2C:39-5d (count one); two counts of fourth-degree unlawful theft or receipt of a credit card, N.J.S.A. 2C:21-6c (counts two and three); four counts of third-degree fraudulent use of credit cards, N.J.S.A. 2C:21-6h (counts four, five, six, and seven); and fourth-degree hindering his own apprehension, N.J.S.A. 2C:29-3b(2) (count eight). On the same day, defendant was charged under Indictment No. 07-09-1487 with a single count of fourth-degree certain persons not to have possession of a weapon, N.J.S.A. 2C:39-7a. On December 10, 2007, defendant pled guilty to count seven of Indictment No 07-09-1479 and to the single count under Indictment No. 07-09-1487. On February 25, 2008, the court sentenced defendant to an aggregate term of four years of imprisonment with an eighteen-month period of parole ineligibility. The court dismissed the remaining charges and imposed all appropriate fines and penalties.

On December 26, 2008, appellant became eligible for parole. On September 4, 2008, a hearing officer referred the matter to a two-member Board Panel (the Panel). On September 29, 2008, after conducting a hearing and reviewing appellant's parole file, the Panel issued its decision denying parole and establishing a twenty-month FET, determining that "there is a reasonable expectation that [appellant] will violate conditions of parole if released on parole." In so doing, the Panel found the following mitigating factors: appellant has remained infraction free, has participated in institutional programs, has average to above-average institutional reports, and has achieved/maintained minimum custody status. Notwithstanding, the Panel denied parole stating the following reasons: appellant's prior criminal record is extensive and repetitive; appellant is presently incarcerated for multi-crime convictions; appellant's prior opportunities on probation and parole failed to deter his criminal behavior; appellant's prior opportunity on parole had been violated in the past; and his prior incarcerations did not deter criminal behavior.

The Panel proffered additional reasons for denying parole, including appellant's insufficient problem resolution. Specifically, the Panel noted appellant's lack of insight into his criminal behavior, his denial of the crimes, and his minimization of his conduct, that is, appellant "has yet to address his anti-social criminal behavior and fails to see himself as doing anything wrong - presently or in past." Lastly, the Panel noted that appellant lacks an adequate parole plan to assist him in successful reintegration into the community, and that appellant's mental health report noted that he was at a high risk for recidivism.

On October 22, 2008, appellant appealed the Panel's decision to the Board. On February 4, 2009, the Board affirmed. In so doing, the Board reasoned in relevant part:

Based upon consideration of the facts cited above, the full Board has determined that the Adult Panel has considered the aggregate of information pursuant to N.J.A.C. 10A:71-3.11 and fully documented and supported its decision for denying parole pursuant to N.J.A.C. 10A:71-3.18(f). Also, the full Board found that the Adult Panel's decision is based upon a determination that a preponderance of the evidence indicates that there is a reasonable expectation that you would violate the conditions of parole if released on parole at this time.

On appeal, appellant argues that the Board's decision denying him parole is not supported by credible evidence in the record; the Board failed to consider his successful completion of a prior parole in relation to other criminal offenses; and the Board failed to consider the trial court's expectation that he be paroled when he first becomes eligible. We disagree.

Our role in reviewing the decision of an administrative agency is limited. Circus Liquors, Inc. v. Middletown Twp., 199 N.J. 1, 9 (2009). 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 Parole 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 appellant's arguments in light of the record and applicable law. We conclude that the arguments are without sufficient merit to warrant discussion in a full written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by ...

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