BILAL ABDEL-AZIZ 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NOT FOR PUBLICATION WITHOUT THE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

BILAL ABDEL-AZIZ,

Appellant,

v.

NEW JERSEY STATE PAROLE

BOARD,

Respondent.

_____________________________________________

May 12, 2015

Submitted April 28, 2015 Decided

Before Judges Koblitz and Currier.

On appeal from the New Jersey State Parole Board.

Bilal Abdel-Aziz, appellant pro se.

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

PER CURIAM

Bilal Abdel-Aziz, a New Jersey state prisoner, appeals from the June 19, 2013 final administrative decision of the New Jersey State Parole Board (Board) denying him parole and establishing a future eligibility term (FET) of 144-months. We affirm.

In 1974 Abdel-Aziz shot and killed another man after an argument. He and two others then burned the house and forced the victim s wife at gunpoint to flee with them to another state. On February 15, 1974, Abdel-Aziz was arrested and charged with murder, kidnapping, threatening, conspiracy to commit murder, arson and assault with a deadly weapon. The kidnapping and arson-related offenses were dismissed as part of a plea bargain. On October 8, 1974, Abdel-Aziz entered non vult contendere1 to the offenses of murder and murder while armed. On November 1, 1974, plaintiff was sentenced to a term of life for murder and a concurrent term of five to ten years for being armed.

On April 5, 1994, Abdel-Aziz was granted parole. Once released, he left the state and was missing for two years. Abdel-Aziz was returned to custody in December 1998 for violations of parole. In addition to absconding supervision he had been using drugs.

In August 2001 Abdel-Aziz was again released on parole to a program, in which he was unsuccessful, and he was returned to custody in six months. He was next paroled to another program in October 2002, which he failed to complete, but was continued on parole subject to the Electronic Monitoring Program. He committed another parole violation and was returned to custody on October 29, 2004. Parole was again revoked in May 2005.

In August 2005 the Board re-paroled Abdel-Aziz to a 180-day residential in-patient stay. Appellant did complete this program and was released in February 2006. Less than a month later Abdel-Aziz had again gone missing. Abdel-Aziz absconded from parole for nearly six years. He was returned to custody in January 2012. The Board revoked his parole on February 22, 2012 for violations of numerous conditions of parole.

Prior to Abdel-Aziz s charges of murder, he had been arrested for larceny and receiving stolen property in 1969 for which he had served a probationary term of five years. In 1971 Abdel-Aziz was arrested for robbery and sentenced to a term of one to two years. He had been found guilty of four disciplinary infractions during his periods of incarceration.

On August 16, 2012, a two-member board panel denied parole and referred his case to a three-member panel for the establishment of an FET. On October 17, 2012, a three-member Board panel established a 144-month FET. Abdel-Aziz appealed their decision to the full Board. On June 19, 2013, the Board affirmed the denial of parole and the imposition of the 144-month FET. This appeal followed.

On appeal Abdel-Aziz does not challenge the denial of parole but only the length of the FET. He contends the Board violated the New Jersey and United States Constitutions when it set the FET of 144-months, and that the applicable statutes themselves are vague and must be voided as they do not provide sufficient guidelines to advise inmates of the circumstances that might give rise to an FET that is longer than statutorily prescribed, thus leaving the establishment of an FET open to interpretation by the Board.

Judicial review of parole determinations is limited to an evaluation of whether the Parole Board acted arbitrarily or abused its discretion in rendering its decisions. The actions of the Parole Board are presumed valid and reasonable. In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff d, 135 N.J. 306 (1994). Our review is limited to a determination as to whether the agency s findings could reasonably have been reached on the credible evidence in the record. Trantino v. N.J. State Parole Bd., 166 N.J. 113, 175, modified, 167 N.J. 619 (2001). An agency s decision can be set aside only "if there exists in the reviewing mind a definite conviction that the determination below went so far wide of the mark that a mistake must have been made." N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div. 1988), cert. denied, 111 N.J. 649 (1988) (quoting 613 Corp. v. State of New Jersey, Div. of State Lottery, 210 N.J. Super. 485, 495 (App. Div. 1986).

The assignment of future eligibility parole dates is governed by N.J.A.C. 10A:71-3.21. Subsection (d) of that regulation provides that a three-member board panel may establish an FET date outside of those set forth in prior sections of the regulation "if the future parole eligibility date which would be established pursuant to such subsections is clearly inappropriate due to the inmate s lack of satisfactory progress in reducing the likelihood of future criminal behavior." N.J.A.C. 10A:71-3.21(d). The three-member panel is instructed to consider the factors set forth in N.J.A.C. 10A:71-3.11.

In reaching its decision to establish a 144-month FET the Board considered the required factors in N.J.A.C. 10A:71-3.11. The panel noted as reasons for parole denial Abdel-Aziz s prior criminal record, the nature of his criminal record becoming increasingly more serious, prior opportunities on parole and probation having failed to deter criminal behavior, prior parole violations such as failure to report, leaving the State without permission, changing address without permission, and failure to participate in random drug screening. The panel noted that prior incarcerations did not deter criminal behavior. Finally, in response to questions posed by the panel at the time of Abdel-Aziz s hearing the panel determined that Abdel-Aziz exhibited "insufficient problem resolution, specifically, that [he] lack[ed] insight into [his] criminal behavior, [he] minimize[s] his] conduct, and [he] [has] not sufficiently addressed [his] substance abuse problem." The panel noted "inmate still controlled by his criminal thinking. Inmate says one thing, but his actions are contrary, as evident by multiple returns while on supervision."

The panel noted as mitigating factors Abdel-Aziz s minimal criminal record, his participation in institutional programs, his attempts made to enroll and participate in programs to which he was not admitted, minimum custody status achieved, and the risk assessment evaluation.

The Board agreed with the two-member panel that there was a substantial likelihood that Abdel-Aziz would commit a crime if released on parole. The Board concluded that Abdel-Aziz had demonstrated a lack of satisfactory progress in reducing the likelihood of future criminal behavior and that pursuant to N.J.A.C. 10A:71-3.21(d) an FET established within the statutorily provided guidelines was inappropriate in his case.

We are satisfied that the credible evidence in the record supports the three-member panel s finding and decision as affirmed by the Board.

Appellant contends that the board panel violated the ex post facto laws and due process requirements of the New Jersey and United States Constitutions. We find these arguments to be without merit. Appellant was properly evaluated under the applicable statutes. Section (d) applies to all adult inmates in which a decision to deny parole was rendered after May 1985, more than twenty-five years prior to the Board s decision in this matter. N.J.A.C. 10A:71-3.21(i). As to due process, appellant had a parole hearing with the Board panel and provided information in support of his parole release.

Finally, appellant contends the relied-upon statutes are unconstitutionally vague as there are no guidelines to advise an inmate under what circumstances the FET might be extended beyond the specific parameters. We disagree. See Johnson v. Paparazzi, 219 F. Supp. 2d 635, 642-43, (D.N.J. 2002) (rejecting an inmate s argument that the setting of a 120-month FET was unconstitutional where the panel complies with the direction of N.J.A.C. 10A:71-3.21 and considers the twenty three factors enumerated in N.J.A.C. 10A:71-3.11); See also McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 565 (App. Div. 2002) (upholding the establishment of a thirty-year FET).

We are satisfied that the Board properly rendered its decision on evidence set forth in the record and that its denial of parole and the establishment of a 144-month FET was neither arbitrary nor unreasonable.

Affirmed.

1 A non vult plea is equivalent to a guilty plea. State v. Ramseur, 106 N.J. 123, 273 (1987)