MIKALABDUR-RAHMAAN v. NEW JERSEY STATE PAROLE BOARD

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1774-16T3

MIKAL ABDUR-RAHMAAN,

        Appellant,

v.

NEW JERSEY STATE PAROLE
BOARD,

     Respondent.
_____________________________

              Submitted February 12, 2018 – Decided March 1, 2018

              Before Judges Sabatino and Rose.

              On appeal from the New Jersey State Parole
              Board.

              Mikal Abdur-Rahmaan, appellant pro se.

              Gurbir S. Grewal, Attorney General, attorney
              for respondent (Melissa Dutton Schaffer,
              Assistant Attorney General, of counsel;
              Gregory R. Bueno, Deputy Attorney General, on
              the brief).

PER CURIAM

        Mikal Abdur-Rahmaan appeals from the November 23, 2016 final

agency decision of the New Jersey State Parole Board ("Board")
denying    his    parole      and   imposing       a    ninety-six-month      future

eligibility term ("FET").           We affirm.

     In December 1993, a jury convicted Abdur-Rahmaan of armed

robbery,     aggravated       assault,   burglary,          criminal   restraint,

conspiracy and three weapons offenses.                    On December 23, 1993,

Abdur-Rahmaan was sentenced to an aggregate sixty-five-year term

of   imprisonment      with    twenty-two-and-a-half           years   of    parole

ineligibility.

     Abdur-Rahmaan became eligible for parole for the first time

on November 28, 2015, after serving twenty-two years and twenty

days of imprisonment.          Although a two-member panel of the Board

found certain mitigating factors,1 it denied Abdur-Rahmaan parole.

The two-member panel also referred his matter to a three-member

panel ("panel")        to establish an FET outside the presumptive

schedule.2       The   panel    determined     a       ninety-six-month     FET   was

warranted.



1
 Among other mitigating factors, the two-member panel found Abdur-
Rahmaan   had  a   minimal   offense   record,   participated   in
institutional programs, achieved minimum custody status, and had
commutation time restored.


2 See N.J.A.C. 10A:71-3.21(d) (allowing a three-member panel to
"establish a future parole eligibility date which differs from
[the standard FET] if . . . [the standard FET would be] clearly
inappropriate due to the inmate's lack of satisfactory progress
in reducing the likelihood of future criminal behavior.").


                                         2                                   A-1774-16T3
     In   a   comprehensive           written   decision,    the   panel    noted:

(1) the serious nature of the present offenses, including armed

robbery and weapons offenses, which were committed while Abdur-

Rahmaan was released on bail for a previous arrest; (2) Abdur-

Rahmaan was previously convicted of aggravated assault, the nature

of his prior criminal record is repetitive and increasingly more

serious, and the present offenses were committed while on parole

status;3 (3) Abdur-Rahmaan is presently incarcerated for a multi-

crime   conviction;        (4)    his   prior   opportunities      on     community

supervision    and    previous        incarceration    failed      to    deter   his

criminal conduct; (5) during his incarceration for the subject

offenses, Abdur-Rahmaan committed eight disciplinary infractions,

two of which were of the "asterisk" (i.e., more serious) variety;

and (6) insufficient problem resolution, including his lack of

insight   into       his    criminal       behavior,   and      minimizing       and

demonstrating    a    lack       of   responsibility   for    the       infractions

committed while incarcerated.

     Given the above findings, the panel determined an FET of

ninety-six    months       was   appropriate.       Because     Abdur-Rahmaan's



3
  According to the Board, while awaiting final disposition of the
present offenses, Abdur-Rahmaan was serving a prison term for
prior offenses. "He was released from prison on parole on June
1, 1992; his parole was revoked on March 1, 1994 for technical
(non-criminal) parole violations."

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present offenses were committed prior to August 19, 1997, the

panel   observed   the   ninety-six-month    FET,   which   commenced   on

October 4, 2015, will be reduced by any commutation, work, or

minimum custody credits earned.        See 
N.J.S.A. 30:4-140; 
N.J.S.A.

30:4-92.      Accordingly,      Abdur-Rahmaan's      projected    parole

eligibility date is April 2020.

     Abdur-Rahmaan filed an appeal with the full Board.                 On

November 23, 2016, the Board upheld the recommendation to deny

parole and to impose a ninety-six-month FET.        This appeal ensued.

     On appeal, appellant presents the following arguments for

our consideration:

           POINT ONE

           THE   NINETY[-]SIX[-]MONTH        FET    WAS     NOT
           JUSTIFIED.

           POINT TWO

           THE NINETY[-]SIX[-]MONTH FET EXCEEDS [ABDUR-
           RAHMAAN'S] MAXIMUM SENTENCE.

           POINT THREE

           THE BOARD CANNOT JUSTIFY         [ABDUR-RAHMAAN'S]
           MAXING OUT [HIS] SENTENCE.

           POINT FOUR

           THE BOARD DID NOT ACCURATELY CONSIDER [ABDUR-
           RAHMAAN'S] FAILING HEALTH AND [HIS] AGE.




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          POINT FIVE

          THE NINETY[-]SIX[-]MONTH PAROLE INELIGIBILITY
          (FET) VIOLATED THE PROVISIONS OF [] N.J.S.A.
          30:4-123.53(a).

          POINT SIX

          THE BOARD INAPPROPRIATELY RELIED ON EX-POST
          FACTO LAW TO GIVE [ABDUR-RAHMAAN] THE FET.

          POINT SEVEN

          THE BOARD AND PANELS FAILED TO COMPLY WITH THE
          NEW JERSEY STATE PAROLE BOARD CODE OF
          PROFESSIONAL CONDUCT.

     We have considered these contentions in light of the record

and applicable legal principles and conclude they are without

sufficient merit to warrant discussion in a written opinion.

R. 2:11-3(e)(1)(D).     We affirm substantially for the reasons

expressed in the Board's comprehensive written decision.   We add

only the following comments.

     We must accord considerable deference to the Board and its

expertise in parole matters.    Our review of a Parole Board's

decision is limited.    Hare v. N.J. State Parole Bd., 
368 N.J.

Super. 175, 179 (App. Div. 2004).   "'Parole Board decisions are

highly individualized discretionary appraisals,' and should only

be reversed if found to be arbitrary or capricious."   Id. at 179-

80 (citations omitted) (quoting Trantino v. N.J. State Parole Bd.,


166 N.J. 113, 173 (2001) (Trantino VI)).      We "must determine


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whether the factual finding could reasonably have been reached on

sufficient credible evidence in the whole record."            Id. at 179

(citing   Trantino   VI,   
166 N.J.   at   172).      In   making   this

determination, we "may not substitute [our] judgment for that of

the agency, and an agency's exercise of its statutorily-delegated

responsibilities     is    accorded     a    strong     presumption      of

reasonableness." McGowan v. N.J. State Parole Bd., 
347 N.J. Super.
 544, 563 (App. Div. 2002) (citation omitted).         Accordingly, "[t]he

burden of showing that an action was arbitrary, unreasonable or

capricious rests upon the appellant."        Ibid.

     Where, as here, the crime for which an inmate is incarcerated

occurred before August 19, 1997, "the Board panel shall determine

whether . . . by a preponderance of the evidence . . . there is a

substantial likelihood that the inmate will commit a crime under

the laws of the State of New Jersey if released on parole."

N.J.A.C. 10A:71-3.10(a).     Thus, when an inmate becomes eligible

for parole, there is a "presumption in favor of parole," In re

Trantino, 
89 N.J. 347, 356 (1982) (Trantino II), and the burden

is on "the State to prove that the prisoner is a recidivist and

should not be released."     Trantino VI, 
166 N.J. at 197 (quoting

N.J. State Parole Bd. v. Byrne, 
93 N.J. 192, 205 (1983)).             This

is a "highly predictive" determination, Thompson v. N.J. State

Parole Bd., 
210 N.J. Super. 107, 115 (App. Div. 1986) (quoting

                                   6                              A-1774-16T3
Beckworth v. N.J. State Parole Bd., 
62 N.J. 348, 359 (1973)),

which must take into account "the aggregate of all of the factors

which may have any pertinence."          Beckworth, 
62 N.J. at 360.

     N.J.A.C. 10A:71-3.11(b)(1) to (23) 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.    "[T]he

Board [must] focus its attention squarely on the likelihood of

recidivism."    McGowan, 
347 N.J. Super. at 565.

     An inmate serving a minimum term in excess of fourteen years

is ordinarily assigned a twenty-seven-month FET4 after a denial of

parole.   See N.J.A.C. 10A:71-3.21(a)(1).        However, in cases where

an ordinary FET is "clearly inappropriate due to the inmate's lack

of satisfactory progress in reducing the likelihood of future

criminal behavior[,]" the Board may impose a greater FET. N.J.A.C.

10A:71-3.21(d).




4
  In its brief, the Board incorrectly states Abdur-Rahmaan was
convicted of burglary with a presumptive FET of twenty months.

                                     7                              A-1774-16T3
     Here, we discern no basis to disturb the Board's decision.

The Board duly considered the relevant factors in N.J.A.C. 10A:71-

3.11(b). Its decision is supported by sufficient credible evidence

in the record, and well-articulated reasons, and is entitled to

our deference.   We are satisfied the imposition of a ninety-six-

month FET was neither arbitrary, capricious nor unreasonable.       See

McGowan, 
347 N.J. Super. at 565 (affirming the imposition of a

thirty-year    FET   based   on   appellant's   high   likelihood    of

recidivism).

     Affirmed.




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