PAUL WILLIAMS v. NEW JERSEY STATE PAROLE BOARD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4313-10T3

PAUL WILLIAMS,

Appellant,

v.

NEW JERSEY STATE PAROLE

BOARD,

Respondent.

_______________________________

December 21, 2012

Submitted December 17, 2012 - Decided

Before Judges Sabatino and Maven.

On appeal from the New Jersey State Parole Board.

Paul Williams, appellant pro se.

Jeffrey S. Chiesa, Attorney General, attorneyfor respondent(Lewis A. Scheindlin, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Paul Williams, who was convicted of first-degree felony murder in 1972, appeals the Parole Board's final agency decision dated February 23, 2011 denying him parole and establishing a future eligibility term ("FET"). We affirm.

The State's proofs established the following facts. At the time of the homicide on July 10, 1972, the victim was working at a tavern in Jersey City. Appellant and two other men entered the tavern, intending to commit a robbery. Appellant had a knife, while one of the other perpetrators had a gun, and the third one had a blank gun. Appellant held the knife at the neck of a bar patron. The victim then came out of the bathroom and tried to take the gun away from the co-defendant. During that struggle, the co-defendant shot and killed him. The jury found appellant guilty of felony murder.

Following his trial, appellant was sentenced to life in prison. He had prior convictions for burglary, larceny, and other adult offenses. His most recent disciplinary infraction in prison was in 2003.

On May 29, 2009, a two-member panel referred appellant's case for a hearing before the full Board. Thereafter, on July 8, 2009, the full Board denied parole and then referred his case for the establishment of an FET.

In denying parole, the Board considered, among other things, the severity of appellant's criminal record, the fact that he had committed new offenses while on probation, the failure of prior probation to deter his behavior, the failure of prior incarceration to deter his behavior, and a lack of insight into his behavior and minimization of his conduct. Significantly on that last point, during his interview before the Board, appellant tried to minimize his involvement in the tavern shooting, asserting that he had been under the influence of drugs and his two co-defendants at the time. In light of these and other considerations, the Board concluded that there is a substantial likelihood that appellant would commit another crime if he were released on parole. See N.J.A.C. 10A:71-3.11(b).

On March 17, 2010, the full Board established a 120-month FET. Appellant administratively appealed that decision, and on February 23, 2011 the Board sustained both the denial of parole and the 120-month FET. Appellant then filed the present appeal. He contends that the Board's decision was arbitrary and capricious and that it is not supported by substantial credible evidence.

Pursuant to an order issued by this court on December 27, 2011, this appeal was partially remanded to the Board because of the effect of a short-lived statutory amendment that, while it was in effect, had limited the maximum FET to 36 months. See N.J.S.A. 30:4-123.56a. The amendment imposing that cap became effective on August 1, 2010. See L. 2009, c. 330, 6. However, subsequent legislation abolished the 36-month cap, effective May 9, 2011. See L. 2011, c. 67, 1. Although the cap is no longer in existence, it had been in place at the time the full Board rendered its final agency decision in this matter on February 23, 2011. Consequently, the FET aspect of this case was remanded to the Board. However, we retained jurisdiction over the appeal as to the denial of parole itself.1

Our scope of review is very limited. Administrative decisions of the Board are "grounded in strong public policy concerns and practical realities." Trantino v. N.J. State Parole Bd., 166 N.J. 113, 200 (2001) ("Trantino V"). "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)). "To a greater degree than is the case with other administrative agencies, the Parole Board's decision-making function involves 'individualized discretionary appraisals.'" Ibid. (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)). Hence, appellate courts "may overturn the Parole Board's decision only if they are arbitrary and capricious." Ibid. As to the 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., 154 N.J. 19, 24 (1998) ("Trantino IV")); see also McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002) (noting that "[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").

Based upon our review of the parties' submissions, including the reports included in the confidential appendix, we are satisfied that the Board had sound reasons for denying parole here. Although appellant has been incarcerated for over thirty years, the Board had a reasonable basis to find that he still lacks insight into the wrongfulness of his criminal behavior and his participation in a robbery that ended with a homicide. Furthermore, while his institutional behavior apparently has been compliant in the last nine years, the Board points out that appellant has not had a cellmate since 2003, indicating that he has had limited opportunities to engage in violence with another inmate.

Applying the deference that we owe to the Board, we affirm its final agency decision denying parole to appellant. The decision is supported by substantial credible evidence and is neither arbitrary nor capricious.

Affirmed.

1 On remand, the Board issued an order on February 27, 2012, reducing appellant's FET from 120 months to 36 months. Appellant did not file a separate appeal of that remand determination, nor did he move to amend the present appeal. Consequently, we need not consider whether the 36 month FET was excessive, but only need to review the discrete issue of whether parole was appropriately denied.