ABDUL WEBSTER 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NOT FOR PUBLICATION WITHOUT THE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-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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