ANTWAN MALONE VS. NEW JERSEY STATE PAROLE BOARDÂ (NEW JERSEY STATE PAROLE BOARD) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-2597-15T2
ANTWAN MALONE,
Appellant,
v.
NEW JERSEY STATE PAROLE BOARD,
Respondent.
___________________________________
Submitted May 9, 2017 – Decided July 20, 2017
Before Judges Sumners and Mayer.
On appeal from the New Jersey State Parole
Board.
Antwan Malone, appellant pro se.
Christopher S. Porrino, Attorney General,
attorney for respondent (Lisa A. Puglisi,
Assistant Attorney General, of counsel and
Gregory R. Bueno, Deputy Attorney General, on
the brief).
PER CURIAM
Appellant Antwan Malone appeals from the final agency
decision of the New Jersey State Parole Board (Board), denying
parole and imposing a twenty-three month future eligibility term
(FET). We affirm.
On July 25, 2005, appellant was sentenced to prison after
pleading guilty under two separate indictments. Under one
indictment, he pled to second-degree aggravated assault – serious
bodily injury, and was sentenced to a seven-year prison term
subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Under the other, he pled to first-degree robbery, second-degree
conspiracy to commit robbery, second-degree aggravated assault and
third-degree unlawful possession of a weapon – a handgun, and was
sentenced to a consecutive ten-year prison term subject to NERA.
On September 12, 2013, appellant was released on mandatory
parole supervision. Approximately nine months later, his parole
was revoked for committing the offense of hindering apprehension.
After appellant became eligible for parole again, a hearing
officer referred his case to a two-member panel of the Parole
Board. On March 6, 2015, the panel denied parole and set a twenty-
three month FET. It determined there was a reasonable expectation
that appellant would violate conditions of parole if released.
Among other things, the panel cited appellant's: (1) extensive
prior criminal record; (2) prior mandatory parole supervision
which failed to deter his criminal behavior; (3) prior
incarceration which failed to deter his criminal behavior; (4)
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demonstrated lack of insight into his criminal behavior; (5) recent
institutional infractions for assault and disruption of the
security or orderly running of the correctional facility; and (6)
risk assessment score of thirty-three, indicating a high risk of
recidivism. The panel found that those considerations outweighed
the mitigating factors of appellant's participation in various
institutional programs and attempted enrollment in certain
programs.
The full Board issued a final agency decision on July 29,
2015, affirming the denial of parole and establishment of the
twenty-three month FET. The Board concurred with the two-member
panel that "a preponderance of the evidence indicates that there
is a reasonable expectation that [appellant] would violate the
conditions of parole if released on parole at this time."
On appeal, appellant argues that the Board failed to
demonstrate that he would violate conditions of parole if released,
and that the Board erred in considering institutional infractions
that were pending appeal before this court when it considered his
parole request. 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)(E). We affirm substantially for the
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reasons expressed in the Board's comprehensive written decision.
We add only the following brief comments.
Under our standard of review, we must accord considerable
deference to the Board and its expertise in parole matters. Our
standard of review of the Board's decisions is limited, and
"grounded in strong public policy concerns and practical
realities." Trantino v. N.J. State Parole Bd., 166 N.J. 113, 200
(2001) ("Trantino V"). "The decision of a parole board involves
'discretionary assessment[s] of a multiplicity of imponderables
[.]'" Id. at 201 (alteration in original) (quoting Greenholtz v.
Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 10, 99 S. Ct.
2100, 2105, 60 L. Ed. 2d 668, 677 (1979)).
"To a greater degree than is the case with other
administrative agencies, the Parole Board's decision-making
function involves individualized discretionary appraisals." Ibid.
(citing Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 358-59
(1973)). Consequently, our courts "may overturn the Parole Board's
decisions only if they are arbitrary and capricious." Ibid. We
will not disturb the Board's factual findings if they "could
reasonably have been reached on sufficient credible evidence in
the whole record." Id. at 172 (quoting Trantino v. N.J. State
Parole Bd., 154 N.J. 19, 24 (1998) ("Trantino IV") (quoting N.J.
State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.),
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certif. denied, 111 N.J. 649 (1988))); see also McGowan v. N.J.
State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002)
(applying that standard).
Guided by these standards and considering the record,
including the materials in the confidential appendix, we discern
no basis to disturb the Board's decision. The Board considered
the relevant factors in N.J.A.C. 10A:71-3.11. Its decision is
supported by sufficient credible evidence in the record and is
entitled to our deference. The twenty-three month FET imposed by
the Board is the presumptive term based upon defendant's ten-year
prison term as set forth in N.J.A.C. 10A:71-3.21(a)(2).
Affirmed.
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