August 29, 2011
JALANI A. BAKARI, APPELLANT,
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.
On appeal from the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 24, 2011
Before Judges Lihotz and Baxter.
Jalani A. Bakari appeals from an April 28, 2010 decision of the State Parole Board (Board) that denied his parole request and established a twenty-seven-month future eligibility term (FET). We affirm.
On May 5, 1988, following a trial by jury, Bakari was sentenced to a thirty-six year term of imprisonment with a sixteen-year parole ineligibility term on charges of first-degree robbery, first-degree kidnapping, third-degree criminal sexual contact, third-degree unlawful possession of a handgun and second-degree possession of a weapon for an unlawful purpose. The State's proofs at trial established that Bakari and an accomplice pointed a gun at a couple sitting in a car, robbed them at gun point, ordered the male out of the car and drove away with the female still inside the vehicle. During the incident, Bakari fondled the female's breasts and pulled down the zipper on her slacks.
On May 10, 1990, while Bakari was before the Superior Court on an unrelated matter not explained by the record, he became enraged and kicked the counsel table, flinging it five feet across the room while using loud and abusive language. Not until sheriffs physically restrained him did the incident come to an end. For this outbreak, Bakari was convicted of fourth-degree contempt of court and sentenced to a six-month term of imprisonment, consecutive to the sentence he was already serving.
On July 11, 2006, after serving twenty years of the thirty-six year sentence, Bakari was released on parole. In February 2008, Bakari was taken into custody for violating parole and remained incarcerated until June 2008, although his parole was not formally revoked. A year later, on March 27, 2009, Bakari's parole officer issued a second parole violation warrant, this time based upon Bakari's failure to report as instructed, failure to obtain approval prior to changing his residence, failure to participate in random urine monitoring, refusal to complete substance abuse counseling and failure to remain drug-free. On April 6, 2009, Bakari was apprehended and returned to custody on the parole violation warrant. Ten days later, on April 16, 2009, a Board Panel revoked Bakari's parole and imposed a nine-month FET.
Following his return to custody, Bakari became eligible for parole for the first time on October 28, 2009. An initial hearing was scheduled before a hearing officer, but the hearing officer referred the matter to a Board panel pursuant to N.J.A.C. 10A:71-3.15(b), which requires such a referral when an inmate has sustained a prior parole revocation or has committed certain enumerated violent crimes.
On September 24, 2009, after interviewing Bakari and considering his record, a two-member Board Panel (Panel) denied parole and established a twenty-seven-month FET. The Panel based its decision on the following factors: the extent of Bakari's prior criminal record, which included not only the matters we have already described, but also a juvenile adjudication of delinquency for unlawful possession of a knife and an adult conviction for hindering apprehension; his criminal convictions had become increasingly more serious; Bakari was presently incarcerated for a multi-crime conviction; his current opportunity on parole had been revoked for technical reasons, including a failure to report, an unauthorized change in residence, a failure to submit to urine monitoring and a failure to refrain from drug and alcohol usage; his prior opportunities on probation had failed to deter him from engaging in further criminal behavior; and he had failed to sufficiently address his serious substance abuse problem.
The two-member Panel also relied on the results of a December 26, 2005 psychological exam, which revealed that Bakari had scored 24 on the LSI-R psychological test, which put him at "medium" risk for recidivism with a twenty-eight percent chance of re-arrest and a twenty-one percent chance of reconviction within two years of release. Last, the Panel noted that Bakari demonstrated insufficient problem resolution, specifically, he lacked insight into his criminal behavior and had failed to sufficiently address his serious substance abuse problem.
As a mitigating factor, the Panel noted that Bakari had remained infraction-free since his return to custody on the parole violation.
Bakari appealed the Panel's decision to the full Board, which on April 28, 2010, affirmed the denial of parole and the imposition of a twenty-seven-month FET.
On appeal, Bakari raises the following claims:
I. THE NEW JERSEY PAROLE BOARD VIOLATED APPELLANT'S RIGHT OF DUE PROCESS BY VIOLATING EXISTING PAROLE BOARD POLICY.
II. THE PANEL VIOLATED EXISTING BOARD POLICY BY NOT BASING ITS DECISION ON SUFFICIENT CREDIBLE EVIDENCE.
III. THE PANEL FAILED TO ADHERE TO PROCEDURES [THEREBY] VIOLATING STANDARD PROCEDURE.
IV. THE PANEL VIOLATED THE U.S. CONSTITUTION 6TH AND 14TH AMENDMENT RIGHT[S] OF DUE PROCESS BY NOT PROVIDING APPELLANT WITH CROSS-EXAMINATION AND CONFRONTATION.
V. THE PANEL['S] CONTENTION OF APPELLANT'S LIKELIHOOD OF COMMITTING ANOTHER CRIME IS NOT BASED ON SUBSTANTIAL EVIDENCE AND IS WITHOUT MERIT.
Our scope of review is a narrow one, and we review Bakari's contentions in accordance with that standard. We must affirm unless the Board's decision was unreasonable, unsupported by credible evidence in the record or contrary to law. Trantino v. N.J. State Parole Bd., 166 N.J. 113, 172 (2001) (Trantino VI). In conducting this limited review, we must accord the Board's decision a presumption of validity; and the burden is on the challenging party to show that the Board's actions were unreasonable. Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div. 1993), certif. denied, 135 N.J. 469 (1994). Moreover, because the Board's decisions are to be considered highly "individualized discretionary appraisals," the Board is vested with "broad but not unlimited discretionary powers" in reviewing an inmate's parole record and rendering a release decision. Trantino VI, supra, 166 N.J. at 173 (internal quotation marks and citations omitted).
For inmates like Bakari serving sentences for crimes committed prior to August 18, 1997, the Board must grant parole unless a preponderance of the evidence in the record demonstrates that "there is a substantial likelihood that the inmate will commit a crime under the law of this State if released on parole[.]" N.J.S.A. 30:4-123.53(a).
N.J.A.C. 10A:71-3.11(b) contains a non-exhaustive list of factors that the Board may consider in determining whether to release an inmate on parole. Such factors include: the facts and circumstances of the underlying offense; aggravating and mitigating factors surrounding the offense; participation in institutional programs; the existence of any statements by institutional staff, accompanied by supporting documentation, that the inmate is likely to violate conditions of parole if released; and statements by the inmate reflecting on whether there is a reasonable expectation that he will violate parole conditions if released. Ibid.
We turn to Point I, in which Bakari maintains that the Board's April 28, 2010 decision must be reversed because pursuant to N.J.A.C. 10A:71-7.17, he can only receive a maximum FET of twelve months. He is incorrect. While it is true that upon an initial parole revocation, the Board can only impose a maximum twelve-month FET, N.J.S.A. 30:4-123.64(b), N.J.A.C. 10A:71-7.17; however, at any proceeding thereafter, when the Board is considering an inmate's eligibility for parole, the Parole Board is not limited to imposing a maximum twelve-month FET. Indeed, N.J.A.C. 10A:71-3.21(a)(1) specifies that inmates serving a sentence for crimes including kidnapping, of which Bakari was convicted, shall be given a presumptive twenty-seven-month FET if the Board decides to deny parole. Thus, we reject Bakari's argument in Point I that the Board violated his right to due process by issuing an FET that exceeded twelve months. III.
In Point II, Bakari maintains that the Board's decision should be reversed because it was unsupported by sufficient credible evidence in the record. In particular, he maintains that there is no record support for the Board's conclusion that he was likely to commit another crime if released on parole. He points out that after being paroled in 2006, he committed no new crime. Bakari also asserts that he was never charged with, or convicted of any crime, during his twenty years of incarceration.
As the Board points out in response, the applicable regulations entitle the Board to consider the facts and circumstances of the underlying case and the nature and pattern of any previous convictions in deciding whether to grant parole. Here, the Board was entitled to consider that the nature of Bakari's criminal background had become more serious, escalating from hindering apprehension and possessing a knife, to robbery, kidnapping, aggravated assault and weapons possession.
In deciding that Bakari was likely to commit a new crime if released on parole, the Board was also entitled to consider his recent parole release and his inability to abide by the conditions of his parole, noting that he had been released to the community in July 2006 but was returned to custody briefly on February 21, 2008 after being charged with violating conditions of parole. Although Bakari's parole was not formally revoked at that time, his re-arrest in February 2008, and his return to custody in April 2009, demonstrate a pronounced pattern of refusal, or inability, to abide by rules and regulations. The Board was entitled to infer from such infractions that Bakari's inability to conform his behavior to accepted standards could also include committing further criminal acts. Last, we note that the Board relied upon the LSI-R testing showing that Bakari was at medium risk for recidivism.
We conclude, contrary to Bakari's assertions, that the Board's determination that he was likely to commit a crime if released on parole was supported by substantial and credible evidence in the record.
In Point III, Bakari asserts that the Board's decision should be reversed because the Board failed to adhere to established procedures. In particular, he maintains that in violation of N.J.S.A. 30:4-123.54, he was not provided with a pre-parole report 120 days prior to his parole eligibility date. He also argues that he was not permitted to see a parole counselor and that he was denied the opportunity to submit material to the Board prior to the hearing.
As the Board explained in adjudicating Bakari's appeal from the two-member Board Panel's decision, there were no pre-parole reports prepared in his case because such reports are prepared by the Department of Corrections (DOC) and Bakari was not in DOC's custody until September 2009, when the hearing occurred. Therefore, DOC could not provide any reports concerning his progress.
Further, Bakari was interviewed by a Parole hearing officer at his initial hearing on September 22, 2009, and at that time, he was able to provide input regarding his case. He also had the opportunity to discuss any aspect of his case during his Panel hearing, including his institutional progress, and to submit any material to the Board that he deemed relevant. We thus reject Bakari's claim in Point III that the Board violated applicable procedures.
We turn to Point IV, in which Bakari maintains that his right of cross-examination and confrontation was denied during his hearing. This argument is meritless, as the Sixth Amendment right of confrontation and cross-examination is applicable only to criminal trials, and is not applicable to parole hearings. We thus reject the claim Bakari advances in Point IV.
Last, in Point V, Bakari asserts that the Board's decision should be reversed because the Board failed to demonstrate that there is a substantial likelihood that he would commit a new crime if released on parole. This argument lacks merit. The record reflects that the Board considered all relevant mitigating evidence in his case, which included the fact that he had obtained a GED and completed some college courses, had demonstrated "[s]ome job skills and work history" and had "[e]xpressed family and religion values." However, the Board concluded that these mitigating factors were outweighed by the aggravating factors that we have already noted and denied Bakari's request for parole.
Our careful consideration of the record persuades us that the Board gave full and fair consideration to all of the factors in Bakari's record and that the Board's consideration of Bakari's matter was grounded in the factors articulated by statute and administrative regulation. We have been presented with no meritorious basis upon which to disturb the result the Board reached when it denied Bakari's request for parole and imposed a twenty-seven-month FET.
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