ABDUL WEBSTER 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NOT FOR PUBLICATION WITHOUT THE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
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1925-17T2

ABDUL WEBSTER,

          Appellant,

v.

NEW JERSEY STATE PAROLE
BOARD,

     Respondent.
______________________________

                   Submitted October 16, 2018 – Decided November 30, 2018

                   Before Judges Fisher and Suter.

                   On appeal from the New Jersey State Parole Board.

                   Abdul Webster, 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
       Abdul Webster appeals the July 19, 2017 final agency decision of the

Parole Board (Board) that denied his request for parole and set a twenty-month

future parole eligibility term (FET). We affirm.

       In 2013, Webster was convicted by a jury of possession of controlled

dangerous substances (CDS),  N.J.S.A. 2C:35-10(a)(1), distribution of CDS,

 N.J.S.A. 2C:35-5(a)(1), and distribution of CDS within a school zone,  N.J.S.A.

2C:35-7. He was sentenced to a ten-year term of incarceration subject to a five-

year period of parole ineligibility. In 2010, Webster pled guilty to endangering

the welfare of a child,  N.J.S.A. 2C:24-4(a). He was sentenced in 2013 to a four-

year term to run concurrently with the CDS sentence. Webster became eligible

for parole in 2017.

       A two-member panel of the Parole Board denied his request for parole on

December 19, 2016, finding a "reasonable expectation that [he] would violate

the conditions of parole if released on parole" and establishing a twenty-month

FET.     The panel considered mitigating factors, consisting of Webster's

participation in programs specific to his behavior, institutional reports of

favorable adjustment, attempts to enroll in other programs while incarcerated,

and that he attained minimum custody status.




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        The panel denied parole, however, based on consideration of Webster's

prior criminal record, consisting of eight adult convictions, his record of

offenses, which was repetitive, his incarceration for multiple offenses, and that

his prior opportunity on probation failed to deter his criminal behavior. Webster

committed serious institutional infractions while incarcerated resulting in

detention and administrative segregation with a loss of commutation time. The

last offense had occurred in March 2015. He exhibited insufficient problem

resolution, lacked insight into his criminal behavior, denied the offenses, and

minimized his conduct.

        Webster was administratively returned to the prison from "B camp"1 with

mental health issues. The panel noted "[h]is inability to recognize his criminal

behavior and thinking raise[d] serious concerns for a successful parole," which

was based on his interview and documentation in his case file. 2 Webster's risk

assessment score was thirty, indicating a high risk for recidivism. In denying

parole and establishing the FET, the panel suggested an "in depth




1
    The State refers to this as a satellite camp.
2
 The two-member panel amended its decision in June 2017 to add "confidential
material/professional report" to this section.
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psych[ological] before the next hearing" and that Webster "must remain

infraction free."

      Webster appealed the decision to the full Board. On July 19, 2017, the

Board denied parole and established a twenty-month FET.               It reviewed

Webster's parole request to determine whether there was a reasonable

expectation he would violate conditions of parole if released on parole. It

rejected his contention the two-member panel found he did not cooperate in

rehabilitation. However, based on his responses to questions from the panel, the

Board agreed that he lacked insight into his criminal behavior, minimized his

conduct and denied his crimes. He had gained little insight from his involvement

in treatment.       His criminal behavior was "deeply rooted" based upon his

"extensive" criminal record and infractions while incarcerated, all of which

"contradict[ed] his claim to rehabilitation." The Board agreed with the panel

there was a reasonable expectation Webster would violate the conditions of

parole if he were released on parole at that time.

      The Board rejected Webster's contention the full record had not been

reviewed by the panel. The panel had considered his disciplinary infractions

while in prison, which involved a refusal to submit to a search, threat with bodily

harm and refusing to obey; it considered mitigating factors such as participation


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in institutional programs.   The Board rejected his claim the panel had not

considered his parole plan. It found there was no error by considering all of the

professional staff reports in the record. The Board rejected his claim that the

panel posed inappropriate questions at the hearing, finding there was no

demonstration of "personal interest, prejudice or bias." The Board agreed a

preponderance of the evidence indicated a reasonable expectation that Webster

would violate the conditions of parole if released on parole. It affirmed the

denial of parole and imposition of a twenty-month FET.

      Webster appeals arguing:

            POINT I. THE FINDINGS AND DECISION
            DENYING PAROLE AN (SIC) IMPOSITION OF A 20
            MONTH FUTURE TERM OF ELIGIBILITY WERE
            ARBITRARY,       CAPRICIOUS          AND
            UNREASONABLE.

            POINT II. THE DECISION DENYING PAROLE
            RELEASE    HAD    BEEN   BASED    UPON
            INSUFFICIENT, UNRELIABLE INFORMATION,
            THAT WERE NOT IN THE RECORD INACCURATE
            AND FALSE.

      The scope of our review is very limited. In re Stallworth,  208 N.J. 182,

194 (2011) (citing Henry v. Rahway State Prison,  81 N.J. 571, 579 (1980)).

"[T]he Parole Board is the 'agency charged with the responsibility of deciding

whether an inmate satisfies the criteria for parole release under the Parole Act


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of 1979.'" Acoli v. N.J. State Parole Bd.,  224 N.J. 213, 222 (2016) (quoting In

re Application of Hawley,  98 N.J. 108, 112 (1984)). A Board's decision involves

"discretionary assessment[s] of a multiplicity of imponderables . . . ." Ibid.

(alteration in original) (quoting Greenholtz v. Inmates of Neb. Penal & Corr.

Complex,  442 U.S. 1, 10 (1979)). Unless the Board's decision is found to be

"arbitrary, capricious, or unreasonable, or not supported by substantial credible

evidence in the record as a whole," it shall not be disturbed. Stallworth,  208 N.J. at 194 (alteration omitted); see Acoli,  224 N.J. at 222-23. "The burden of

showing that an [agency's] action was arbitrary, unreasonable or capricious rests

upon the appellant." McGowan v. N.J. State Parole Bd.,  347 N.J. Super. 544,

563 (App. Div. 2002).

      We are satisfied the Board based its decision "on the aggregate of all

pertinent factors, including material supplied by the inmate and reports and

material which may be submitted by any persons or agencies which have

knowledge of the inmate." See N.J.A.C. 10A:71-3.11(a). It was within the

Board's discretionary power to determine there was a reasonable expectation

that Webster would violate conditions of parole if released on parole. The Board

applied the correct legal standard and considered the relevant factors under

N.J.A.C. 10A:71-3.11(b), including his mental health, in deciding to deny parole


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and to set a twenty-month FET. The standard FET for a narcotics law violation

is twenty additional months. See N.J.A.C. 10A:71-3.21(a)(3).

      Our standard of review is not to substitute our judgment for the Board

with respect to denial of parole or the setting of an FET. See N. J. State Parole

Bd. v. Cestari,  224 N.J. Super. 534, 547 (App. Div. 1988). On the record

presented, the Board's decision was not arbitrary or capricious, see McGowan,

 347 N.J. Super. at 563, and we conclude that the Board did not abuse its

discretion in denying appellant's application for release on parole or in setting

the twenty-month FET.

      Webster contends the Board erred by taking into consideration his mental

health information. That confidential information was part of the record that the

Board reviewed. It must consider all pertinent information. Beckworth v. N.J.

State Parole Bd.,  62 N.J. 348, 360 (1973) (providing the Board should give

consideration to "all of the factors which may have any pertinence"). The mental

health records are confidential and not to be released to the inmate. N.J.A.C.

10A:22-2.7(d). The Board also considered all the relevant factors required by

N.J.A.C. 10A:71-3.11(b), in addition to mental health records, in denying parole

and setting the FET. We conclude the Board's findings were not arbitrary




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capricious or unreasonable and are supported by adequate, substantial and

credible evidence in the record.

      Affirmed.




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