January 24, 2013
LUTHER SEAY, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 September 27, 2012 -
Before Judges Sapp-Peterson and Haas.
Inmate Seay appeals the denial of parole arising out of his conviction for aggravated manslaughter. We affirm.
Seay is serving a twenty-eight-year state prison sentence, which includes a thirteen-year minimum period of parole ineligibility. The sentence arises out of his conviction, as part of a negotiated plea agreement, for one count of aggravated manslaughter. N.J.S.A. 2C:11-4. He first became eligible for parole on July 22, 2009. A two-member panel denied parole and then referred the matter to a three-member panel for establishment of a future eligibility term (FET). Prior to the matter being considered by the three-member panel, Seay claimed procedural impropriety in connection with his hearing before the two-member panel. As a result, a second hearing was conducted before the same two-member panel. That panel reached the same conclusion. In its decision, the two-member panel focused upon defendant's criminal record, including the nature of his criminal history, his previous failed opportunities at probation and parole, his numerous disciplinary infractions (twenty-five with eleven asterisk offenses),*fn1 and the continued minimization of his conduct regarding the underlying offense.
On June 16, 2010, a three-member panel considered the matter and established a 108-month FET. Following an appeal of both panels' decisions, the full Parole Board affirmed the three-member panel's 108-month FET. Seay filed a timely appeal, but subsequently moved for a remand for reconsideration of his FET in light of our unpublished decisions in St. Pierre v. N.J. State Parole Board, No. A-0411-10 (App. Div. Oct. 31, 2011), and Righetti v. Parole Board, No. A-2233-10 (App. Div. Nov. 7, 2011). We granted the motion and remanded the matter to permit recalculation of his FET, retaining jurisdiction to address the merits of the denial of parole.
On appeal, Seay contends: (1) "the [Parole B]oard members were . . . presented with inaccurate information that substantially affected the decision"; (2) "significant information, which was not considered[,] warrants review of the decision that is presently being appealed"; (3) "the [Parole B]oard members failed to consider material facts in his case"; (4) the "panel has abandoned this defendant[']s need for rehabilitation and transitional placement needs"; (5) the "panel failed to consider material facts"; (6) the [Parole B]oard decision was contrary to board policy"; (7) the "[Parole B]oard members demonstrated prejudice or bias which affected [the] decision"; (8) the "[Parole B]oard members . . . failed to comply with professional code of conduct"; (9) it was not established, by a preponderance of the evidence, that he would commit another crime if released on parole; and (10) the "[Parole B]oard abused its discretion in establishing such a lengthy future parole eligibility term."
We have considered the arguments advanced on appeal in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D). We add the following brief comments.
A decision granting or denying parole is subject to the discretion of the Parole Board, but can be reviewed by us for arbitrariness. Because the parole eligibility statute creates a presumption that a person should be released on his or her eligibility date, a decision not to release must be considered arbitrary if it is not supported by a preponderance of the evidence in the record. Kosmin v. N.J. State Parole Bd., 363 N.J. Super. 28, 41--42 (App. Div. 2003).
Our standard of review of administrative decisions by 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 (alteration in original) (quoting Greenholtz v. Inmates of Nebraska Penal and Corr. Complex, 442 U.S. 1, 10, 99 S. Ct. 2100, 2105, 60 L. Ed. 2d 668, 677 (1979)). "To a greater degree than is the case with other administrative agencies, the Parole Board's decision-making function involves individualized discretionary appraisals." Ibid. (citing Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 358--59 (1973)). Consequently, our courts "may overturn the Parole Board's decisions only if they are arbitrary and capricious." Ibid. With respect to the Parole Board's factual findings, we do not disturb them if they "'could reasonably have been reached on sufficient credible evidence in the whole record.'" Id. at 172 (quoting Trantino v. N.J. State Parole Bd. ("Trantino IV"), 154 N.J. 19, 24 (1998)). We will not second-guess the Parole Board's application of its considerable expertise in sustaining the hearing officer's determination. See, e.g., In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J. 306 (1994).
Here, we are fully satisfied that the denial of Seay's parole and the Parole Board's establishment of a new 108--month FET was supported by substantial credible evidence in the record. The decision was also neither arbitrary nor capricious. Defendant's previously failed experience on parole and probation, his lengthy prison disciplinary record, and continued minimization of his conduct provide evidence supporting the Parole Board's determination. We discern no basis to disturb its decision.