UGOCHUKWU MADUBUIKE 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NOT FOR PUBLICATION WITHOUT THE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-0

UGOCHUKWU MADUBUIKE,

Plaintiff-Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Defendant-Respondent.

_________________________________

Submitted April 15, 2013 Decided

Before Judges Parrillo and Maven.

On appeal from the New Jersey State Parole

Board.

De Luca & Taite, attorneys for appellant

(Samuel R. De Luca and George T. Taite, on

the brief).

Jeffrey S. Chiesa, Attorney General, attorney

for respondent (Lewis A. Scheindlin, Assistant

Attorney General, of counsel; Christopher C.

Josephson, Deputy Attorney General, on the

brief).

PER CURIAM

Appellant Ugochukwu Madubuike, an inmate currently incarcerated, appeals from a final agency decision of the Parole

Board denying parole and imposing a twenty-four month future eligibility term (FET). We affirm.

The relevant facts are as follows. While working as a Family Services Specialist for the New Jersey Division of Youth and Family Services (DYFS), where he had access to the personal information of individuals served by DYFS, appellant, along with a female cohort with whom he resided, fraudulently obtained and deposited approximately 170 United States Treasury refund checks in the names of various individuals totaling approximately $660,000. On December 21, 2009, appellant pled guilty to the federal crimes of mail fraud, conspiracy to use falsely made United State Treasury checks and filing false, fictitious and fraudulent claims. He was sentenced to forty-one months in federal prison. Based on this same conduct, appellant pled guilty in State court to second-degree receiving stolen property, N.J.S.A. 2C:20-7, and on September 22, 2010, was sentenced as a third-degree offender to four years in prison concurrent to his federal sentence.

Appellant first became eligible for parole on February 4, 2011. On February 18, 2011, a two-member Board Panel denied parole and established a twenty-four month FET, basing its decision on appellant's insufficient problem resolution, including a lack of insight into his criminal behavior and

minimization of conduct, as demonstrated by the Panel interview and documentation in the case file. Regarding mitigating factors, the Board recognized that appellant has no prior criminal record and has remained infraction-free during his incarceration.

Appellant appealed the Panel's decision to the full Board, who affirmed the denial of parole and the imposition of a twenty-four month FET. In doing so, the Board reasoned in part:

After reviewing the tape of February 18, 2011, it is clear that the Adult Panel was correct in its determination that the less than adequate answers your client provided during his panel hearing sufficiently demonstrate the limited understanding your client possesses regarding his choice to engage in criminal behavior. Pursuant to N.J.A.C. 10A:71-3.11, the Adult Panel is required to consider and base its decision on the aggregate of factors, including the answers your client provided during his panel hearing as well as the documentation present in his case file. The Panel has the authority to determine an inmate's suitability for parole and the standard for assessing a case is whether a reasonable expectation exists that the inmate will violate conditions of parole if released on parole. It was found that the Panel based its decision on this standard. Therefore, the full Board found that the Panel appropriately considered this information; that your client lacks insight into the causes of his criminal behavior is supported by the record; and therefore, this contention is without merit.

. . . .

The record does not support your contention that the Adult Panel failed to consider the positive factors that your client has in his favor. Your client's prior work history, educational achievement, and parole plan are all a matter of record. This information was noted by the Hearing Officer at the time of his Initial hearing and was on file, available for review and considered at the time of his Panel hearing. In addition, the full Board found that your client's lack of a prior criminal record and infraction free status were specifically noted as mitigating factors in its Notice of Decision. Therefore, the full Board found your contention to be without merit.

On appeal, appellant contends the Board's decision was arbitrary and capricious. We disagree.

The Parole Board's decisions are highly "individualized discretionary appraisals." Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)). The standard of review applicable to other administrative agency decisions applies to our review of the Parole Board's Determinations. Trantino v. N.J. State Parole Bd., 154 N.J. 19, 24-25 (1998). We must determine:

(1) whether the agency's action violates express or implied legislative policies, i.e., did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have

been made on a showing of the relevant factors.

[Id. at 24.]

"Parole Board decisions should not be reversed by a court unless found to be arbitrary . . . or an abuse of discretion[.]" Id. at 25 (internal citation omitted). 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).

In addition, in reviewing the Board determination whether the standard for release has been met, we must give "due regard" to the ability of the factfinder with experience and expertise in this field, Titti v. Division of Developmental Disabilities, 381 N.J. Super. 366, 381-82 (App. Div. 2005), rev'd on other grounds, 189 N.J. 478 (2007), to judge credibility, State v. Locurto, 157 N.J. 463, 470-71 (1999); Clowes v. Terminix International, Inc., 109 N.J. 575, 587-88 (1988). The standard of parole is that the inmate shall be released on parole unless,

by a preponderance of the evidence . . . there is a reasonable expectation that the inmate will violate conditions of parole if released on parole at that time.

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

This is a "highly predictive" determination, Thompson v. New Jersey State Parole Board, 210 N.J. Super. 107, 115 (App. Div.

1986) (quoting Beckworth, supra, 62 N.J. at 359), which must take into account "the aggregate of all of the factors which may have any pertinence." Beckworth, supra, 62 N.J. at 360.

N.J.A.C. 10A:71-3.11(b) contains a non-exhaustive list of factors that the Board may consider in determining whether an inmate should be released on parole. Among the pertinent factors are "[s]tatements by the inmate reflecting on the likelihood that he or she will commit another crime; the failure to cooperate in his or her own rehabilitation; or the reasonable expectation that he or she will violate conditions of parole" as well as "any other factors deemed relevant." Ibid.

Here, the Board's denial of parole was based on a proper analysis of the factors it deemed relevant and was supported by sufficient credible evidence. Appellant's lack of insight into his crimes and minimization of his criminal conduct was well illustrated by his own statements at the hearing before the Panel, who found appellant had "no understanding of his choice to become involved in criminal behavior." Absent such an understanding, appellant lacks an appreciation for the consequences of his actions. As such, the Board was well within its discretion in concluding that appellant simply had not overcome the reasonable expectation that he would violate conditions of his parole if released.

These same considerations support imposition of the twenty-four month FET. Pursuant to N.J.A.C. 10A:71-3.21(a)(3), the standard FET for an inmate serving a sentence for theft is twenty months. However, given the breadth and magnitude of the criminal theft scheme involved here as well as the personal characteristics of appellant, who has yet to develop meaningful insight into his criminal behavior and attain sufficient progress in problem resolution, the Board's increased adjustment of the standard FET by four months is well supported in the record. N.J.A.C. 10A:71-3.21(c).

Affirmed.

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