ABDURRAHIM A. SHARIF v. NEW JERSEY PAROLE BOARD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0183-05T10183-05T1

ABDURRAHIM A. SHARIF,

Appellant,

v.

NEW JERSEY PAROLE BOARD,

Respondent.

____________________________________________________

 

Submitted October 12, 2006 - Decided November 6, 2006

Before Judges Stern and A. A. Rodr guez.

On appeal from a final decision of the

New Jersey Parole Board.

Abdurrahim A. Sharif, appellant pro se.

Stuart Rabner, Attorney General, attorney

for respondent (Michael J. Haas, Assistant

Attorney General, of counsel; Kimberly A.

Sked, Deputy Attorney General, on the brief).

PER CURIAM

Abdurrahim Sharif appeals from the August 3, 2005 final administrative determination of the Parole Board which denied him parole and established a twenty-seven month future eligibility term (FET). He claims that the "Parole Board's unfettered discretion to deviate from administrative guidelines with no set timetable allows an arbitrary, capricious and mechanical operation of the statute which results in violations of the statutes, constitutions of New Jersey and the United States" and that imposition of a "second FET" in his case "with no intervening factors, is arbitrary, capricious" and unlawful.

Sharif was serving Title 2A and 2C sentences aggregating forty years and eleven months with fifteen years to be served before eligibility for parole when denied parole in 2003. An FET of thirty-six months was then set. We affirmed the final administrative determination, despite Sharif's due process claims and assertions of arbitrariness. Sharif v. New Jersey State Parole Bd., A-2141-03T5 (Oct. 18, 2004). Any assertions of improper sentence aggregation were presumably raised and considered at the time.

Sharif argues that the Board should have adhered to the FET it previously fixed because there was no "new evidence" which justifies the second denial of parole. However, as the Board pointed out in its August 3, 2005 opinion:

[A]mendments to the Parole Act of 1979 provide for the Board to consider the entire record at each instance of parole consideration. No longer is the Board restricted to consider only "new" information.

In fact, the Assembly Law and Public Safety Committee statement to A21 which became L. 1997, c. 213 provides:

Similarly, under section 12 of P.L.1979, c.441 (C.30:4-123.56), the parole board currently is required to release any inmate who has been previously denied parole unless new information obtained in a new preparole report or produced at the hearing indicates by a preponderance of the evidence that there is a substantial likelihood the inmate will commit a crime upon release. Under the bill's provisions, at the second and subsequent parole hearings, the parole board would not be required to base its decision strictly on information developed since the previous denial of parole, but could consider information provided at earlier parole hearings. The Governor's Study Commission on Parole described the provision permitting the parole board to consider only new information in a subsequent parole decision as "one of the most significant and inappropriate limitations that existing law places on the board's discretion.

[N.J.S.A. 30:4-123.53.]

See N.J.S.A. 30:4-123.53(a), -123.56(c).

In any event, in upholding the Adult Panel, the Board considered appellant's institutional history and progress since the prior denial of parole in 2003. The Board specifically found that Sharif had not addressed his substance abuse problem and continued to have "mental health issues" as evidenced by "a recent confidential professional report." These factors seem to provide new evidence to support the Board's findings. In any event, the record supports a finding of "a substantial likelihood that [Sharif] would commit a crime if released on parole." See N.J.S.A. 30:4-123.53(a); In re Parole of Trantino, 89 N.J. 347, 369 (1982). See also Trantino v. N.J. State Parole Board, 166 N.J. 113, 173, 200 (2001), modified 167 N.J. 619 (2001) (scope of review).

Affirmed.

 

Parole had been granted in 1983 and revoked in 1987.

There is no contention that application of the revised statute to any part of appellant's sentence would present an ex post facto concern.

We add that N.J.S.A. 30:4-123.56(a) does require "a schedule of future parole eligibility dates" based on factors including the crime and the inmates record. See N.J.A.C. 10A:71-3.11, -3.21. Any deviation of the schedule must be accompanied by a statement of reasons. N.J.S.A. 30:4-123.56(b). The Board may deny parole whenever "there is a reasonable expectation that the inmate will violate conditions of parole." N.J.S.A. 30:4-123.56(c).

(continued)

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A-0183-05T1

November 6, 2006