October 26, 2011
SHURKI LESTER, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 October 4, 2011
Before Judges Payne and Hayden.
This is an appeal by Shurki Lester, a state prison inmate, from a final administrative decision of the State Parole Board (Board) denying him parole and establishing a twenty-four month future eligibility term (FET). After a thorough review of the Board's determination, we affirm.
Lester is an inmate currently incarcerated at Southern State Correctional Facility, serving an eight-year sentence with a mandatory minimum of two years, for a conviction on three counts of distributing a controlled dangerous substance (CDS), and two counts of unlawful possession of a weapon. Prior to the incidents that led to his present sentence, Lester had been convicted of aggravated assault, conspiracy to commit possession of a CDS with the intent to distribute, and hindering prosecution, and had two convictions for distributing, dispensing or possessing CDS in a school zone and three convictions for possession of CDS. Additionally, Lester had violated the parole conditions of his 1996 sentence and the probation conditions of his 1998 sentence.
On August 6, 2010, after becoming eligible for parole for the first time on his present sentence, Lester received his initial parole hearing. The hearing officer referred the matter to a two-member Parole Board Panel, which considered Lester's case, denied parole and established a twenty-four-month FET. Lester appealed the panel's decision to the full Board, which affirmed the panel's decision on October 10, 2010. This appeal followed.
In considering Lester's claims, the full Board found:
The Panel appropriately noted as reasons for parole denial: prior criminal record is repetitive; presently incarcerated for a multi crime conviction; nature of criminal record is increasingly more serious; prior opportunities on probation and parole have failed to deter criminal behavior; prior opportunities on probation and parole have been violated in the past; and prior incarcerations did not deter criminal behavior. Furthermore, based upon your response to questions posed by the panel at the time of the hearing and pre-parole reports, the Panel appropriately determined that you exhibit insufficient problem solving resolution, specifically that you lack insight into your criminal behavior and minimize your conduct. The Panel noted, "He is beginning to understand his criminal thinking and behavior. He needs to continue to address his issues and would benefit from taking more programs."
The Panel also considered your risk assessment evaluation and score of 25, which indicates a medium risk of recidivism.
The Board noted that the Panel had considered Lester's mitigating factors, including his infraction-free status, participation in institutional programs, average to above average institutional reports, and attempts to enroll in other programs. Addressing Lester's contention that the Panel had unjustly found that he had failed to cooperate in his own rehabilitation, the Board determined that the Panel had not made such a finding or utilized that factor in its decision. Finally, the Board concluded that the Panel had considered all the relevant information, fully documented its decision, and determined that a preponderance of the evidence indicated there was a reasonable expectation of Lester violating the conditions of his parole if released at that time. Accordingly, the Board affirmed the Panel's decision to deny parole and establish a twenty-four month FET. This appeal followed.
On appeal, Lester raises the following contentions:
POINT I: THE PAROLE BOARD ERRED BY DENYING PAROLE WITHOUT SHOWING BY A PREPONDERANCE OF THE EVIDENCE HOW THE APPELLANT IS LIKELY TO RECIDIVATE BECAUSE HE LACKS INSIGHT INTO CRIMINAL BEHAVIOR AND MINIMIZES HIS CONDUCT.
POINT II: THE BOARD FAILED TO ESTABLISH THE APPELLANT'S "STANDARD OF PAROLE" DURING THE PANEL HEARING, WHICH IS REQUIRED.
POINT III: THE PAROLE BOARD'S DECISION TO DENY PAROLE AND ESTABLISH A TWENTY-FOUR MONTH FUTURE ELIGIBILITY TERM SHOULD BE REMANDED BECAUSE IT IS NOT SUPPORTED BY SUFFICIENT CREDIBLE EVIDENCE IN THE RECORD.
Our standard of review of administrative decisions of the Parole Board is limited and "grounded in strong public policy concerns and practical realities." Trantino v. N.J. State Parole Bd., ("Trantino V") 166 N.J. 113, 200 (2001). The decision of a parole board involves "discretionary assessment[s] of a multiplicity of imponderables . . . ." Id. at 201 (citing Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 10, 99 S. Ct. 2100, 2105, 60 L.Ed. 2d 668, 677 (1979)).
Deferring as we must to the expertise of the Board, we will not disturb the Board's factual findings if they are based on sufficient credible evidence in the whole record. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002). Consequently, we may overturn a parole board's decision only if it is arbitrary and capricious. Trantino V, supra, 166 N.J. at 173.
Applying the above deferential standard of review, we find no basis in this record to disturb the Board's decision in this case. We are satisfied that the Board considered all the relevant material facts and had sufficient credible evidence before it to deny the parole request and extend the FET beyond the presumptive term. Moreover, the Board applied the correct legal standard in making its ultimate determination that the evidence gave rise to a reasonable expectation that Lester would violate his parole if released at that time. N.J.S.A. 30:4-123.53(a). Accordingly, we find that the Board's decision was not arbitrary, capricious or unreasonable on the record presented.
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