MUHAMMAD ABDULLAH 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NOT FOR PUBLICATION WITHOUT THE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

MUHAMMAD ABDULLAH,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

________________________________________________________________

July 24, 2014

Submitted February 12, 2014 Decided

Before Judges Lihotz and Maven.

On appeal from the New Jersey State Parole Board.

Nancy C. Ferro, attorney for appellant.

John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Shirley P. Dickstein, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Muhammad Abdullah appeals from a September 28, 2011 determination of the New Jersey State Parole Board (the Board) affirming the decision of the full Board Panel (full Board), which denied parole and established a thirty-six month future parole eligibility term (FET) in accordance with N.J.A.C. 10A:71-3.21(a). We affirm.

Abdullah is currently confined at Southern State Correctional Facility, serving an aggregate sentence of life in prison plus a ten-year sentence following convictions for murder, robbery, armed robbery, and a weapons offense committed in 1973. He previously had been denied parole in 1993, when a 144-month FET was imposed; in 2000, when a 120-month FET was ordered; and again in 2005, when an 84-month FET was imposed.

Most recently, Abdullah became eligible for parole on December 29, 2008. A two-member board panel considered Abdullah's case and referred his matter to the full Board. After granting Abdullah a postponement pending a psychological evaluation, the full Board considered Abdullah's case on February 16, 2011. The full Board denied parole and established a thirty-six month FET. The full Board considered the interview, documentation in the case file, and confidential materials, and stated its decision was based on:

insufficient problem resolution including Abdullah's lack of insight into his criminal behavior and minimization of conduct; prior criminal record; the nature of a criminal record increasingly more serious; prior incarcerations that did not deter criminal behavior; institutional infractions; and the commission of a crime while incarcerated.

The full Board also noted four mitigating factors: participation in and attempts to participate in institutional programs; average to above average institutional reports; and the achievement of minimum custody status. The full Board found a substantial likelihood existed that Abdullah would commit a new crime if released.

Abdullah filed an administrative appeal challenging the determination of the full Board, particularly the lack of credit attributed to the report prepared by Jonathan H. Mack, Psy. D. In a September 28, 2011 written decision, the Board affirmed the full Board's decision. Abdullah filed this appeal, presenting only one issue for our consideration:

THE NEW JERSEY PAROLE BOARD ABUSED ITS DISCRETION IN AFFIRMING THE FULL BOARD PANEL'S DENIAL OF PAROLE TO [HIM].

We have considered this contention in light of the record and applicable legal principles and conclude it is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed in the Board's written decision. We add only the following brief comments.

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)). The Board has broad, but not unlimited, discretionary power. Monks v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971).

In our review, we do not disturb the factual findings of the Board if they could reasonably have been reached on sufficient credible evidence in the record. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002). 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. We will not second-guess the Board's application of its considerable expertise unless we find the decision was arbitrary and capricious. Ibid. The burden is on the appellant to prove the Parole Board acted unreasonably. Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div. 1993), certif. denied, 135 N.J. 469 (1994).

In examining the record in light of the argument raised, we are satisfied that the Board adhered to these principles and its own guidelines in rendering the final decision. At the time of the full Board hearing, the record included Dr. Mack's report. It is clear from the questions asked that the Board members had read the report. The Board's final decision stated that "the entire record was considered by the Board prior to making its determination." Thus, we conclude the Board's findings were based "on sufficient credible evidence in the whole record," Trantino v. New Jersey State Parole Board, 154 N.J. 19, 24 (1998), (quoting New Jersey State Parole Board v. Cestari, 224 N.J. Super. 534, 547 (App. Div.), certif. denied, 111 N.J. 649 (1988)), and are entitled to our deference. In the Board's application of those facts, we find nothing arbitrary, capricious, or unreasonable in its determination to deny parole and establish a thirty-six month FET.

Affirmed.