MALIC WASHINGTON v. NEW JERSEY STATE PAROLE BOARD

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1072-18T1

MALIC WASHINGTON,

          Appellant,

v.

NEW JERSEY STATE
PAROLE BOARD,

     Respondent.
_______________________

                    Submitted December 18, 2019 – Decided December 31, 2019

                    Before Judges Haas and Mayer.

                    On appeal from the New Jersey State Parole Board.

                    King, Kitrick, Jackson, McWeeney & Wells, LLC,
                    attorneys for appellant (Michael Delate Schaller, on the
                    brief).

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Sookie Bae, Assistant Attorney General, of
                    counsel; Christopher Josephson, Deputy Attorney
                    General, on the brief).

PER CURIAM
      Appellant Malic Washington appeals from a September 26, 2018 State

Parole Board (Board) final agency decision revoking his parole and establishing

a fourteen-month future eligibility term (FET). We affirm.

      On March 27, 2007, Washington began conversing on the internet with an

adult volunteer working with law enforcement, who he believed was a twelve-

year-old girl. Washington stated he wished to meet her for the purpose of

engaging in sexual intercourse. On March 31, Washington went to the address

provided by the volunteer. After he arrived, the police arrested Washington,

who later pled guilty to third-degree attempted sexual assault. On October 24,

2008, the trial court sentenced Washington to a non-custodial term and parole

supervision for life (PSL).

      As part of his PSL, Washington was subject to a number of conditions,

including conditions that required him to refrain from: initiating, establishing,

or maintaining contact with any minor without the prior approval of his parole

officer; using any computer to create a social networking profile or to access a

social networking service or chatroom without prior authorization from his

parole officer; purchasing or possessing pornography; possessing children's

toys, games, magazines, or clothing without prior permission of his parole




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officer; and possessing the names, addresses, pictures, or photos of minors

without prior permission of his parole officer.

      In 2011, the Board revoked Washington's parole and imposed a twelve-

month FET after it found that Washington used an internet device to access

online social networking sites without permission, and that he was in possession

of pornography.

      After his release from custody, Washington violated the PSL conditions

again in 2015. This time, he was found with an unapproved cellphone with a

camera/video feature containing pictures of minors in provocative poses and

"skimpy" clothing. The Board did not revoke Washington's parole for these

violations, but did impose additional conditions and more intensive monitoring

procedures.

      During a home visit conducted on January 26, 2018, Washington's parole

officer1 found that Washington had an unapproved cellphone containing social

media applications and websites, including Facebook, Instagram, and a text

messaging service called WhatsApp.          The phone also had a cache of

pornographic images, and a picture of Washington and a minor female. In



1
 Because Washington was living in New York, parole authorities in that state
monitored his compliance with the PSL conditions.
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addition, the parole officer discovered that Washington was in possession of a

video gaming system.

      Washington pled guilty to violating the PSL conditions, but argued that

his violations were merely "technical." He asserted that: he accessed the social

networking sites to seek employment and to contact his friends and family; the

pornography found on his cellphone involved images of adults rather than

minors; the minor in the photograph was his niece; and he possessed the gaming

system for his own use. However, Washington did not seek prior permission

from his parole officer to access the social networking sites, have contact with

the minor, or possess the gaming system. In addition, the bar against possessing

pornography contained no exceptions permitting him to possess pornographic

images of adults.

      Following a parole revocation hearing, the hearing officer found by clear

and convincing evidence that Washington violated the conditions of PSL , and

recommended that Washington's parole be revoked with the imposition of a

fourteen-month FET. The hearing officer stated:

            [Washington's] first term of PSL was revoked in 2011
            for multiple violations. On January 26, 2018, [New
            York] parole authorities discovered a photo of
            [Washington] and a minor on [his] cell phone. This was
            a violation of multiple conditions of supervision,
            including that [Washington] was not allowed to be in

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            the presence of a minor without the prior approval of a
            parole officer. Additionally, it was determined that
            [Washington] had used his cell phone to access
            pornographic videos. Additionally, it was determined
            that [he] was utilizing multiple social networking
            accounts without approval.           It is clear from
            [Washington's] presentation here that he was aware of
            these conditions, felt they were too restrictive and,
            therefore, chose to disregard the conditions.
            [Washington's] prohibited conduct encompassed a
            series of violations.      [He] has incurred similar
            violations in the past on PSL. Moreover, the continued
            use of social networking accounts, not only mirrors a
            prior PSL violation, but also [his] commitment offense.
            This Hearing Officer finds that these present violations
            are both serious and persistent. [Washington] is not
            amenable to supervision.

      On June 20, 2018, a two-member Board Panel reviewed the record and

concurred with the hearing officer's determination.           The panel revoked

Washington's parole and imposed a fourteen-month FET. Washington filed an

administrative appeal of this decision and, on September 26, 2018, the full Board

affirmed the panel's determination. This appeal followed.

      On appeal, Washington argues that the Board's decision "was arbitrary,

capricious and unreasonable as it failed to document clear and convincing

evidence that [he] seriously or persistently violated the conditions of his parole."

We have considered this argument in light of the record and applicable legal

principles and conclude it is without sufficient merit to warrant discussion in a


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written opinion.   R. 2:11-3(e)(1)(D) and (E).     We add the following brief

comments.

      "Parole Board decisions are highly 'individualized discretionary

appraisals.'" Trantino v. N.J. State Parole Bd. ("Trantino VI"),  166 N.J. 113,

173 (2001) (quoting Beckworth v. N.J. State Parole Bd.,  62 N.J. 348, 359

(1973)). As such, we give great deference to the Board's "expertise in the

specialized area of parole supervision." J.I. v. N.J. State Parole Bd.,  228 N.J.
 204, 230 (2017).

      In reviewing a final decision of the Board, this court considers: (1)

whether the Board's action is consistent with the applicable law; (2) whether

there is substantial credible evidence in the record as a whole to support its

findings; and (3) whether in applying the law to the facts, the Board erroneously

reached a conclusion that could not have been reasonably made based on the

relevant facts. Trantino v. N.J. State Parole Bd. ("Trantino IV"),  154 N.J. 19,

24 (1998).    Consequently, where the Board has applied the correct legal

standard, our role is limited to determining whether the decision was arbitrary,

capricious, or unreasonable. McGowan v. N.J. State Parole Bd.,  347 N.J. Super.
 544, 563 (App. Div. 2002). "The burden of showing that an action was arbitrary,

unreasonable or capricious rests upon the appellant." Ibid.


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      Applying these principles, we are satisfied that the Board's revocation of

Washington's parole and the imposition of a fourteen-month FET was supported

by sufficient credible evidence in the record and was neither arbitrary,

capricious, or unreasonable. Therefore, we affirm substantially for the reasons

stated by the Board in its September 26, 2018 final decision.

      Affirmed.




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