June 19, 2013
ABDUL SALAAM ALI, Appellant,
NEW JERSEY STATE PAROLE BOARD, Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 16, 2013.
On appeal from the New Jersey State Parole Board.
Abdul Salaam Ali, appellant pro se.
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Shirley P. Dickstein, Deputy Attorney General, on the brief).
Before Judges Lihotz and Mantineo.
Appellant Abdul Salaam Ali, who is currently confined in South Woods State Prison, appeals from a June 29, 2011 State Parole Board (the Board) decision denying parole and issuing an eighteen-month future eligibility term (FET). Ali argues the Board's decision is arbitrary and capricious. We affirm the denial of parole but remand for review of the imposed FET.
These facts are taken from the administrative record. Ali was convicted of murder in 1977. After being incarcerated for seventeen years, he was released on parole. Ali's parole was revoked and he was again paroled on May 22, 2001. However, he was convicted for violating parole and confined, then again paroled, subject to an electronic monitoring system. On February 21, 2008, Ali was arrested for the manufacturing, distributing, and dispensing of heroin. He pled guilty pursuant to a negotiated agreement, and on July 10, 2009, was sentenced to four years imprisonment with a two-year period of parole ineligibility.
After an initial parole hearing on January 4, 2010, parole was denied and a fourteen-month FET was imposed. Parole eligibility was again reviewed on February 14, 2011. An adult panel denied parole and recommended an eighteen-month FET.
Ali appealed, alleging a member who participated in the February 14, 2011 deliberations demonstrated a personal interest, prejudice or bias in the case, which adversely affected the outcome. He also asserted the FET imposed exceeded the parole guidelines for his current third-degree conviction, making the decision arbitrary and capricious.
The full Board reviewed Ali's case on June 29, 2011, and affirmed the adult panel's denial of parole and imposed FET. In its final agency decision, the Board cited the following reasons warranting denial of parole:
prior criminal record noted; presently incarcerated for a multi crime conviction; nature of criminal record is increasingly more serious; current opportunity on parole revoked for the commission of a new offense; prior incarcerations did not deter criminal behavior; and since your last Panel hearing you committed an institutional infraction on January 4, 2010[, ] in violation of *.306, conduct which disrupts, which was found to be serious in nature, [and] resulted in a loss of commutation time, and [a]dministrative [s]egregation. Furthermore, based on your responses to questions posed by the Panel at the time of the hearing and documentation in the case file, the Panel appropriately determined that you exhibit insufficient problem resolution, specifically, that you lack insight into your criminal record and have not sufficiently addressed your substance abuse problem. The Panel noted, "Inmate's murder took place on juvenile parole and his 2008 drug charge was committed on parole on the homicide. This and other [parole violations] . . . keeps concerns high for further violations or crimes." The Panel also considered your risk assessment evaluation and score of 26, which indicates a medium risk of recidivism.
The Board also acknowledged the Panel's consideration of mitigating factors based on the institutional programs Ali completed.
Addressing Ali's challenge to the eighteen-month FET, the Board stated:
N.J.A.C. 10A:71-3.21 provides that the presumptive parole eligibility term for an inmate convicted of a violation of the narcotics law is twenty months. This term may be increased or decreased by nine (9) months based on the severity of the crime, the prior criminal record or other characteristics which warrant an adjustment, pursuant to N.J.S.A. 10A:71-3.21(c). Here, the Panel determined to impose an eighteen (18) month future eligibility term. The full Board found that this future eligibility term is warranted [and] . . . consider[ing] . . . all relevant material facts[, ] . . . is within the guidelines of the Administrative Code.
On appeal, Ali challenges the Board's June 29, 2011 decision denying him parole and imposing an eighteen-month FET, arguing:
THE 1938 AND 1979 PAROLE ACT BARS CONSIDERATION OF ANYTHING OTHER THA[N] THAT ENACTED UNDER ITS STATUTES AND REGULATIONS. THE PAROLE BOARD VIOLATED APPELLANT'S RIGHT AS GUARANTEED BY THE FOURTEENTH AMENDMENT.
DUE PROCESS REQUIRED BY THE NEW JERSEY PAROLE STATUTE MANDATES AN INMATE SHALL BE RELEASED ON PAROLE UNLESS INFORMATION INDICATES SUBSTANTIAL LIKELIHOOD THAT THE INMATE WILL COMMIT A CRIME IF RELEASED.
THE DECISION IS EXCESSIVE AND CONSTITUTIONALLY IMPERMISSIBLE.
Our scope of review is very limited. This limited review of administrative decisions of the Board is "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 Neb. Penal & Corr. Complex, 442 U.S. 1, 10, 99 S.Ct. 2100, 2105, 60 L.Ed.2d 668, 677 (1979)). We do not disturb the factual findings of the Board 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)). See also McGowan v. N.J. State Parole Bd., 347 N.J.Super. 544, 563 (App. Div. 2002) (noting "[a]dministrative actions, such as parole decisions, must be upheld where the findings could reasonably have been reached on the credible evidence in the record"). Further, we remain mindful that "[t]o a greater degree than is the case with other administrative agencies, the Parole Board's decision-making function involves individualized discretionary appraisals."
Trantino V, supra, 166 N.J. at 201 (citation omitted). 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). Consequently, we reverse a Parole Board decision only when it is found to be arbitrary and capricious. Trantino V, supra, 166 N.J. at 201.
Parole reviews are guided by N.J.S.A. 30:4-123.53a, which states in pertinent part:
An adult inmate shall be released on parole at the time of parole eligibility, unless information supplied in the report . . . or developed or produced at a hearing . . . indicates by a preponderance of the evidence that the inmate has failed to cooperate in his or her own rehabilitation or that there is a reasonable expectation that the inmate will violate conditions of parole . . . if released on parole at that time.
The courts have interpreted "reasonable expectation" to mean a "substantial likelihood" the inmate will violate parole if released. See Kosmin v. N.J. State Parole Bd., 363 N.J.Super. 28, 41 (App. Div. 2003). Further, the Administrative Code provides:
(a) Parole decisions shall be based on the aggregate of all pertinent factors, including material supplied by the inmate and reports and material which may be submitted by any persons or agencies which have knowledge of the inmate.
(b) The . . . Board . . . may consider any other factors deemed relevant[.]
Evaluated against these well-established review standards, we reject Ali's challenges to the sufficiency of the facts considered by the Board in reaching its determination. We conclude the Board's decision to deny parole is amply supported by substantial credible evidence in the record and, therefore, will not be disturbed. However, the Board's imposition of an eighteen-month FET requires further correction.
The Board's denial of parole focused on Ali's drug conviction. Our review shows the maximum term of his sentence, excluding any jail credits, is due to end on July 19, 2013, yet the eighteen-month FET would not end until August 14, 2013.
Pursuant to N.J.A.C. 10A:71-3.21(g), "[i]f an inmate's maximum sentence(s) will expire prior to the future parole eligibility date otherwise established by the . . . Board, the Board . . . shall direct that such inmate serve his or her maximum sentence(s)." Therefore, an imposed FET may not exceed the maximum term of the sentence imposed. Because it seems clear Ali will have served his maximum sentence prior to the expiration of the imposed FET, we vacate that provision and remand to the Board for correction of the FET so that the FET does not exceed the imposed term of incarceration.
Affirmed in part and remanded in part.