ANTHONY ELI VS. NEW JERSEY STATE PAROLE BOARD (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NOT FOR PUBLICATION WITHOUT THE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-2833-17T4
ANTHONY ELI,
Appellant,
v.
NEW JERSEY STATE
PAROLE BOARD,
Respondent.
____________________
Submitted May 9, 2019 – Decided June 24, 2019
Before Judges Simonelli and Whipple.
On appeal from the New Jersey State Parole Board.
Anthony Eli, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa Dutton Schaffer, Assistant
Attorney General, of counsel; Christopher C.
Josephson, Deputy Attorney General, on the brief).
PER CURIAM
Anthony Eli, an inmate incarcerated at East Jersey State Prison, appeals
from a final agency decision of the New Jersey State Parole Board (Board)
denying parole and imposing a twenty-nine-month future eligibility term (FET).
We affirm.
Eli is serving an aggregate twenty-five-year term with a mandatory
minimum of seven years for burglary, attempted burglary, conspiracy to commit
burglary, eluding and theft. These various convictions came from six separate
indictments or accusations from four separate counties. When he pled guilty
and was sentenced for these offenses, he had thirty-six prior adult convictions.
Eli first became eligible for parole on December 22, 2017. On September
15, 2017, after having served six years and six months of his sentence, Eli
received an initial hearing, and his case was referred to a Board panel for a
hearing. On October 13, 2017, a two-member Board panel denied parole and
established a twenty-nine-month FET based on the facts and circumstances of
the offenses and Eli's prior history, including: a conviction for second-degree
eluding, extensive repetitive criminal history, incarceration for multiple
offenses, revocation of prior opportunities on parole and probation, insufficient
problem resolution, lack of insight into criminal behavior and failure to address
substance abuse problems, as demonstrated by a panel interview, documentation
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in the case file, commission of an offense while on bail and the results of an
objective risk assessment.
The Board panel also found mitigating factors, including that Eli was
infraction free, participated in institutional programs, institutional reports
reflected a favorable institutional adjustment, positive adjustment to a
therapeutic community and minimum custody status was achieved and
maintained. Eli appealed the Board panel's decision to the full Board. On
January 31, 2018, the Board affirmed the Board panel's decision to deny parole
and impose a twenty-nine-month FET. This appeal followed.
On appeal, Eli argues the Board panel's decision to deny parole was not
supported by the evidence presented at a hearing, and it was unreasonable for
the Board panel to conclude his substance abuse was not being sufficiently
addressed.
Our review of final administrative agency decisions is limited. Malacow
v. N.J. Dep't of Corr., 457 N.J. Super. 87, 93 (App. Div. 2018). The Board's
decisions, like those of other administrative agencies, will not be reversed unless
they are "arbitrary, capricious or unreasonable or [are] not supported b y
substantial credible evidence in the record as a whole." Henry v. Rahway State
Prison, 81 N.J. 571, 579-80 (1980). This limited review of parole
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determinations accords agency action a presumption of validity and
reasonableness. In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993). The
burden is on the challenging party to show the Board's actions were
unreasonable. Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304-05
(App. Div. 1993).
Pursuant to N.J.S.A. 30:4-123.53(a), the Board should generally grant
parole requests for release on an inmate's parole date unless there is a
"reasonable expectation that the inmate will violate conditions of parole" and
such an expectation is demonstrable "by a preponderance of the evidence." In
determining that Eli was ineligible for parole, the Board considered several
factors, including mitigating and aggravating factors. The Board noted that Eli's
criminal history was extensive, and his prior experiences with the probation
system did not deter him from other criminal behaviors. The Board also
considered Eli's insufficient problem resolution skills and that his substance
abuse history prevented him from successfully completing parole. Although Eli
participated in Alcoholics Anonymous and other substance abuse programs in
prison, and even though the Board considered his efforts, the Board noted
concern for his nearly thirty years of poly-substance abuse coupled with thirty-
six prior convictions and six prior opportunities for community release
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supervision and treatment that were followed by additional drug use and
criminal behavior.
The Board considered all of the mitigating factors raised but found they
were outweighed by the aggravating nature of the totality of the circumstances.
The Board's discretionary assessment is supported by substantial credible
evidence in the record as a whole.
The Board's imposition of a twenty-nine-month FET is permissible
pursuant to N.J.A.C. 10A:71-3.21(c). Under N.J.A.C. 10A:71-3.21(a)(1), a
standard FET for someone serving a sentence in excess of fourteen years is
twenty-seven months. However, under N.J.A.C. 10A:71-3.21(c), the standard
FET may be increased or decreased by up to nine months, when, in the opinion
of the Board panel, the severity of the crime for which defendant was denied
parole and the prior criminal record or other characteristics of the inmate warrant
such adjustment.
The Board's decision to impose a twenty-nine-month FET pursuant to
N.J.A.C. 10A:71-3.21(c) was not arbitrary, capricious or unreasonable. The
Board considered the aggregate of all pertinent factors including those set forth
in N.J.A.C. 10A:71-3.11(b). The Board found Eli had not developed enough
insight to understand why he committed his crimes and how to prevent himself
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from doing so in the future. These findings are all supported by sufficient,
credible evidence in the record.
Affirmed.
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