June 28, 2013
ABDUS SALAAM MALIK, Appellant,
NEW JERSEY STATE PAROLE BOARD, Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 4, 2013
On appeal from the New Jersey State Parole Board.
Abdus-Salaam Malik, 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 Alvarez and Waugh.
Appellant Abdus-Salaam Malik appeals the final administrative action of the New Jersey State Parole Board revoking his parole and establishing a twenty-two month future eligibility term (FET). We affirm.
We discern the following facts and procedural history from the record on appeal.
In May 1995, Malik was convicted of possession of a controlled dangerous substance with intent to distribute (N.J.S.A. 2C:35-5(a)(1)) and related offenses. He received an aggregate custodial term of twenty years. He was paroled in October 2002.
Malik was arrested by federal authorities in March 2004, and charged with unlawful transport of firearms (18 U.S.C.A. § 922(g)). The Board issued a parole-violation warrant in March 2004, based on the federal charges. Malik was subsequently convicted on the federal charge and sentenced to a ninety-six month prison term.
In April 2011, Malik completed his federal sentence and was transported to New Jersey for enforcement of the Board's warrant. Following a hearing in July, the Board's hearing officer found that Malik had violated the terms of his parole. He recommended revocation of parole with a twenty-two month FET. A two-member panel of the Board adopted the hearing officer's recommendations on August 10. Malik appealed to the full Board, which affirmed the panel's decision on December 21. This appeal followed.
On appeal, Malik makes the following arguments:
POINT I: APPELLANT IS ENTITLED TO CREDIT FOR TIME SPENT IN CUSTODY ON A PAROLE DETAINER UNTIL HE WAS SENTENCED ON A NEW FEDERAL OFFENSE.
POINT II: APPELLANT'S PROCEDURAL DUE PROCESS RIGHTS WERE VIOLATED BY THE UNTIMELY PROBABLE CAUSE HEARING PROVIDED BY THE NEW JERSEY STATE PAROLE BOARD.
Our standard of review of administrative decisions of the Parole Board is limited and 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 (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)). "To a greater degree than is the case with other administrative agencies, the Parole Board's decision-making function involves individualized discretionary appraisals." Ibid. Consequently, we may reverse the Parole Board's decision only if it is "arbitrary and capricious." Ibid. We do not disturb the Board's factual findings 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)).
"A court may not substitute its judgment for that of the [Board.]" McGowan v. N.J. State Parole Bd., 347 N.J.Super. 544, 563 (App. Div. 2002). As a result, we accord the Board's decision a presumption of validity, inasmuch as 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).
N.J.S.A. 30:4-123.60(c) provides as follows:
Any parolee who is convicted of a crime . . . committed while on parole shall have his parole revoked and shall be returned to custody unless the parolee demonstrates, by clear and convincing evidence at a hearing pursuant to section 19 of P.L. 1979, c. 441 (C. 30:4-123.63), that good cause exists why he should not be returned to confinement.
The record is clear that Malik was convicted of a crime while on parole.
Malik argues that he was denied due process because he did not receive a prompt hearing. The United States Supreme Court has established the minimum requirements of due process in a revocation proceeding, to include:
(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a "neutral and detached" hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole. We emphasize there is no thought to equate this second stage of parole revocation to a criminal prosecution in any sense. It is a narrow inquiry; the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.
[Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484, 499 (1972).]
Our Supreme Court has recognized those minimum due process requirements. Jamgochian v. N.J. State Parole Bd., 196 N.J. 222, 234-44 (2008) (quoting Morrissey, supra, 408 U.S. at 489, 92 S.Ct. at 2604, 33 L.Ed.2d at 499).
Malik received notice of the charges in the Board's Declaration of Delinquency, which relied on his conviction and the fact that it involved the possession of firearms. Malik received a notice for the hearing within two weeks of his return to New Jersey. He requested the appointment of counsel, which was accomplished in mid-May. Subsequently, counsel was provided with the discovery material. Once counsel was prepared, the hearing was scheduled. Malik was not prejudiced by any delay in holding the hearing because the time between his arrival in New Jersey and the hearing was counted as time in prison for purposes of calculating the revised termination date of his sentence.
Malik's video-conference hearing was held before a neutral hearing officer. Malik, who was represented by counsel, testified on his own behalf and also cross-examined the representative of the Division of Parole. The hearing officer prepared a written summary of the proceeding, setting forth and explaining his findings, conclusions, and recommendations. Malik received a copy of the officer's report, in response to which he submitted written comments to the Board. A two-member panel of the Board then reviewed the report, weighing Malik's comments before issuing a written decision that adopted the hearing officer's findings and recommendations. Malik appealed and the entire Board upheld the panel's decision, also in a written decision. We are satisfied that Malik received the required level of due process.
Malik also challenges the length of his FET, arguing that it violates N.J.S.A. 30:4-123.65 because he did not receive credit for time he spent in custody between the issuance of a parole detainer and his conviction on the federal charge. He contends that the detainer prevented him from posting bail during that period, and that his imprisonment at the time "is attributable solely to his parole status and the detainer." We note, however, that this period was credited against his federal sentence.
N.J.S.A. 30:4-123.65 provides that
[t]he duration of time served prior to parole, plus the duration of any time served on parole, less any time after warrant for retaking of a parolee was issued pursuant to [N.J.S.A. 30:4-123.62] but before the parolee is arrested, plus the duration of any time served after revocation of parole, shall not exceed the term specified in the original sentence.
Malik concedes that the running of his original sentence was properly tolled during the time between his federal conviction and his transfer to New Jersey for execution of the parole-revocation warrant. However, he argues that the Board wrongfully tolled the running of the sentence for the period between the issuance of the warrant and his federal conviction. We disagree.
The statutory language – "less any time after warrant for retaking of a parolee was issued . . . but before the parolee is arrested" – specifically provides for tolling of the time between issuance of the warrant and its execution. Malik was arrested on March 12, 2004, and the warrant was issued on March 15. He was returned to New Jersey for execution of the warrant on April 13, 2011. The Board correctly included the period between March 15, 2004, and April 13, 2011, as tolled for the purposes of calculating Malik's adjusted maximum release date.State v. Oquendo, 262 N.J.Super. 317, 324-26 (App. Div.), rev'd on other grounds, 133 N.J. 416 (1993) does not hold to the contrary.