CORNELL BROWN 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NOT FOR PUBLICATION WITHOUT THE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-3009-18T2

CORNELL BROWN,

          Appellant,

v.

NEW JERSEY STATE
PAROLE BOARD,

     Respondent.
_____________________

                   Submitted November 16, 2020 – Decided December 4, 2020

                   Before Judges Fasciale and Susswein.

                   On appeal from the New Jersey State Parole Board.

                   Cornell Brown, appellant pro se.

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Melissa H. Raksa, Assistant Attorney
                   General, of counsel; Suzanne M. Davies, Deputy
                   Attorney General, on the brief).

PER CURIAM
      Cornell Brown appeals from a January 30, 2019 final agency decision

from the New Jersey State Parole Board (Board) denying parole and establishing

an eighteen-month future eligibility term (FET). Brown is serving an eight-year

prison sentence for carjacking. After considering statutory factors and making

specific findings that were supported by credible evidence in the record, the

Board denied parole. The Board also exercised its discretion by establishing an

FET below the statutory presumption corresponding to Brown's conviction. We

therefore affirm.

      On appeal, Brown raises the following point for this court's consideration:

                POINT I

                THE . . . BOARD'S DECISION TO DENY BROWN
                PAROLE AND IMPOSE AN [EIGHTEEN]-MONTH
                [FET] WAS ARBITRARY, CAPRICIOUS OR
                UNREASONABLE[.]

      This court accords considerable deference to the Board and its expertise

in parole matters. Our review of a Parole Board's decision to deny parole is

"guided by the arbitrary and capricious standard that constrains other

administrative action." Acoli v. N.J. State Parole Bd.,  224 N.J. 213, 222-23

(2016).    "Parole Board decisions are 'highly individualized discretionary

appraisals.'"    Trantino v. N.J. State Parole Bd.,  166 N.J. 113, 173 (2001)



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(Trantino VI) (quoting Beckworth v. N.J. State Parole Bd.,  62 N.J. 348, 359

(1973)). We therefore must focus our inquiry on three questions:

             (1) whether the agency's action violates express or
             implied legislative policies, i.e., did the agency follow
             the law; (2) whether the record contains substantial
             evidence to support the findings on which the agency
             based its action; and (3) whether in applying the
             legislative policies to the facts, the agency clearly erred
             in reaching a conclusion that could not reasonably have
             been made on a showing of the relevant factors.

             [Trantino v. N.J. State Parole Bd.,  154 N.J. 19, 24
             (1998) (Trantino III) (citing Brady v. Dep't of
             Personnel,  149 N.J. 244, 256 (1997)).]

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) (citations omitted). The appellant bears the

burden of showing that the Board's determination was arbitrary, capricious or

unreasonable. Ibid. (citing Barone v. Dept. of Human Serv., Div. of Med. Asst.,

 210 N.J. Super. 276, 285 (App. Div. 1986)).

      The Board must grant parole unless "by preponderance of the evidence

. . . there is a reasonable expectation that the inmate will violate the conditions

of parole imposed . . . if released on parole at that time."  N.J.S.A. 30:4-

123.53(a).   The inmate must be provided both the reasons and evidence

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supporting the denial of parole as well as the reasons and evidence supporting

the FET imposed.       N.J.S.A. 30:4-123.53(b), (c).     N.J.A.C. 10A:71-3.11(b)

provides a non-exhaustive list of twenty-three factors that the Board considers

when determining whether an inmate should be released on parole. The Board

does not have to consider all these factors, only those that are applicable to the

appellant's circumstances. See McGowan,  347 N.J. Super. at 561.

      Under N.J.A.C. 10A:71-3.21(a)(2), after denying parole, "a prison inmate

serving a sentence for . . . any minimum-maximum or specific sentence between

eight and [fourteen] years for a crime not otherwise assigned pursuant to this

section shall serve [twenty-three] additional months." The Board panel may

increase or decrease the FET by up to nine months after considering whether

"the severity of the crime for which the inmate was denied parole and the prior

criminal record or other characteristics of the inmate warrant such adjustment."

N.J.A.C. 10A:71-3.21(c).

      The Board's action is consistent with the applicable law, there is

substantial credible evidence in the record as a whole to support its findings, and

the Board reached conclusions based on the relevant facts. The Board made

extensive findings, which we need not repeat here, demonstrating the basis for

its decision to deny Brown parole. Additionally, the Board properly exercised


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its discretion by reducing the presumptive twenty-three-month FET to eighteen-

months after considering all relevant facts. Although Brown argues in his brief

that his prior parole was wrongfully revoked, that argument is not on appeal here

and may not be considered. See Nieder v. Royal Indem. Ins. Co.,  62 N.J. 229,

234 (1973) (citation and internal quotation marks omitted) (noting the "well-

settled principle that our appellate courts will decline to consider questions or

issues not properly presented to the trial court when an opportunity for such a

presentation [was] available unless [they] . . . go to the jurisdiction of the trial

court or concern matters of great public interest"). As a result, the Board's

decision to deny parole and establish an eighteen-month FET was not arbitrary,

capricious or unreasonable.

      Affirmed.




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