ALMEEN PALMER VS. NEW JERSEY STATE PAROLE BOARD (NEW JERSEY STATE PAROLE BOARD)

• Court: New Jersey Superior Court Appellate Division
• Decided: August 28, 2017
• Docket: A-2427-14T3
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 only binding 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-2427-14T3

ALMEEN PALMER,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

___________________________________

Submitted September 13, 2016 – Decided August 28, 2017

Before Judges Fasciale and Sapp-Peterson.

On appeal from the New Jersey State Parole Board.

Almeen Palmer, appellant pro se.

Christopher S. Porrino, Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Gregory R. Bueno, Deputy Attorney General, on the brief).

PER CURIAM Almeen Palmer is an inmate currently incarcerated at South

Woods State Prison. He appeals from a December 17, 2014

determination of the New Jersey State Parole Board (Board), denying

his appeal from the decision of a two-member Board Panel, which

denied parole and referred the case to a three-member Board Panel

for the establishment of a future parole eligibility term (FET),

and from the decision of a three-member Board Panel, which

established a one-hundred and twenty-month (120) FET, in

accordance with N.J.A.C. 10A:71-3.21(a). The full Board reviewed

the matter and affirmed the denial of parole and establishment of

an FET of 120-months.

In June 2007, a State Grand Jury indicted Palmer for

racketeering, N.J.S.A. 2C:41-2 (count one); knowingly committing

murder, N.J.S.A. 2C:11-3(a)(2) (count four); second-degree

conspiracy to possess, manufacture, distribute a controlled

dangerous substance, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5(a)(1)

(count six); three counts of first-degree purposeful murder,

N.J.S.A. 2C:11-3(a)(1) (counts ten, eleven and twelve); first-

degree kidnapping by holding, N.J.S.A. 2C:13-1(b) (count fifteen);

second-degree burglary, N.J.S.A. 2C:18-2 (count sixteen); second-

degree possession of a weapon (firearms) for an unlawful purpose,

N.J.S.A. 2C:39-4(a) (count seventeen); third-degree possession of

a weapon (firearms) for an unlawful purpose, N.J.S.A. 2C:39-4(a)

2 A-2427-14T3 (count eighteen); third-degree hindering of own prosecution,

N.J.S.A. 2C:29-3(b) (count nineteen); third-degree selling,

transferring a gun to a minor, N.J.S.A. 2C:39-10(e) (count twenty-

two); fourth-degree soliciting and recruiting to join a street

gang, N.J.S.A. 2C:33-28(a) (count thirty-one); third-degree

hindering the prosecution of another, N.J.S.A. 2C:29-3(a) (count

thirty-eight); two counts of third-degree possessing,

manufacturing, or distributing a controlled dangerous substance,

N.J.S.A. 2C:35-5(a)(1) (counts fifty and fifty-one); second-degree

employing a juvenile to distribute drugs, N.J.S.A. 2C:35-6 (count

fifty-two); and second-degree certain persons not to have weapons,

N.J.S.A. 2C:39-7(b) (count seventy). In a separate indictment,

Palmer was charged with third-degree possession of an electronic

communication device while confined, N.J.S.A. 2C:29-10(b), which

stemmed from his confinement at the Cumberland County Jail while

awaiting disposition of the other charges.

On August 23, 2013, Palmer pled guilty to the racketeering

charge. He also pled guilty to possession of an electronic

communication device while incarcerated. On October 11, 2013, the

court imposed a fifteen-year custodial sentence for the

racketeering charge and a three-year custodial sentence for the

possession of an electronic communication device charge, which

runs concurrent to the racketeering charge. In addition to these

3 A-2427-14T3 two convictions, Palmer's prior record consists of two indictable

assault-related offenses for assault-related offenses and two

disorderly persons offenses. As a juvenile, Palmer was adjudicated

a delinquent twenty-five times and violated juvenile parole on

sixteen separate occasions.

He first became eligible for parole on October 11, 2013. A

two-member Board Panel denied parole. The reasons for the denial

included Palmer's prior criminal record, the nature of the offenses

for which he has been convicted, his previously unsuccessful

periods on parole, the fact that prior incarcerations have not

deterred him from engaging in further criminal activity, and

numerous institutional infractions while incarcerated. The only

mitigating factors cited were his participation in institutional

programs and attempts to enroll in programs. The matter was

referred to a three-member Board Panel.

The three-member Board Panel considered the matter and

concurred with the two-member Board Panel's findings. It issued

a decision establishing a 120-month FET. Relying upon the findings

reached by the two-member Board Panel, the three-member Board

Panel found that there was a reasonable expectation that Palmer

would violate the conditions of parole if released. Palmer filed

an administrative appeal to the full Board, which affirmed the

4 A-2427-14T3 denial of parole and the establishment of the 120-month FET. The

present appeal followed.

On appeal Palmer contends the Board violated his due process

rights by imposing an FET that was excessive. He additionally

argues that the Board's decision was contrary to its policy or

procedure, and violated his rights under the New Jersey

Constitution.

We reject Palmer's claims in their entirety. We affirm

substantially for the reasons expressed by the Board in its

December 17, 2014 written decision. We add the following comments.

Our scope of review is very limited. Administrative decisions

of the Board are "grounded in strong public policy concerns and

practical realities." Trantino v. N.J. State Parole Bd., 166 N.J.

113, 200 (2001) (Baime, J.A.D., temporarily assigned, dissenting)

(Trantino V). "The decision of a parole board involves

'discretionary assessment[s] of a multiplicity of imponderables .

. . .'" Id. at 201 (alteration in original) (Baime, J.A.D.,

temporarily assigned, dissenting) (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)). The Board has broad, but not

unlimited, discretionary power. Monks v. N.J. State Parole Bd.,

58 N.J. 238, 242 (1971).

5 A-2427-14T3 In our review, we do not disturb the factual findings of the

Board if they "could reasonably have been reached on sufficient

credible evidence in the record." Trantino V, supra, 166 N.J. at

172 (quoting Trantino v. N.J. State Parole Bd., 154 N.J. 19, 24

(1998) (Trantino IV)). See also McGowan v. N.J. State Parole Bd.,

347 N.J. Super. 544, 563 (App. Div. 2002). Further, we remain

mindful that "[t]o a greater degree than is the case with other

administrative agencies, the Parole Board's decision-making

function involves individualized discretionary appraisals."

Trantino V, supra, 166 N.J. at 201 (Baime, J.A.D., temporarily

assigned, dissenting) (citation omitted).

We will not second-guess the Board's application of its

considerable expertise unless we find the decision was arbitrary

and capricious. Ibid. The burden is on the appellant to prove

the Board acted unreasonably. Bowden v. Bayside State Prison, 268

N.J. Super. 301, 304 (App. Div. 1993), certif. denied, 135 N.J.

469 (1994).

Parole reviews are guided by N.J.S.A. 30:4-123.53(a), which

states that "[a]n adult inmate shall be released on parole at the

time of eligibility, unless" the statutorily required report or

information disclosed during the parole hearing "indicates by a

preponderance of the evidence that the inmate has failed to

cooperate in his [] own rehabilitation or that there is a

6 A-2427-14T3 reasonable expectation that the inmate will violate conditions of

parole[,] if released on parole at that time." Further guidance

is found in the New Jersey Administrative Code, which provides:

(a) Parole decisions shall be based 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.

(b) The . . . Board . . . may consider any other factors deemed relevant[.]

[N.J.A.C. 10A:71-3.11.]

Consequently, a decision to grant parole release is multi-

faceted, and reflects consideration of various factors, some of

which are objectively verifiable, along with a discretionary

assessment of the inmate's likely future behavior based upon the

Board's experience. See Greenholtz, supra, 442 U.S. at 9-10, 99

S. Ct. at 2105, 60 L. Ed. 2d at 677; Puchalski v. N.J. State Parole

Bd., 104 N.J. Super. 294, 299-300 (App. Div.), aff'd, 55 N.J. 113

(1969), cert. denied, 398 U.S. 938, 90 S. Ct. 1841, 26 L. Ed. 2d

270 (1970).

"Common sense dictates that [the Board's] prediction as to

future conduct and its opinion as to compatibility with the public

welfare be grounded on due consideration of the aggregate of all

the factors which may have pertinence." Beckworth v. N.J. State

Parole Bd., 62 N.J. 348, 360), cert. denied, 63 N.J. 583 (1973).

7 A-2427-14T3 Other appropriate factors the Board considers include: (1) the

nature and pattern of previous convictions; (2) adjustment to

previous probation, parole, and incarceration; (3) aggravating and

mitigating factors surrounding the offense; (4) parole plans and

the investigation thereof; and (5) evidence presented by the

appropriate prosecutor's office. N.J.A.C. 10A:71-3.11(b). Thus,

we review Palmer's claims under these well-established standards.

The Board's conclusion that Palmer has been unable to identify

the "root causes" of his extensive criminal behavior, has "failed

to develop adequate and appropriate insight in recognizing issues"

influencing his continued criminal behavior, and his previous

failed attempts at parole are supported by substantial credible

evidence in the record. We reject defendant's challenge to the

evidence the Board considered in reaching its determination that

he is likely to violate conditions of parole. N.J.S.A. 30:4-

123.53(a). The Board's decision reflects the reasoned exercise

of its broad discretion. Monks, supra, 58 N.J. at 242.

We find no merit to Palmer's procedural challenges to the

agency's decision. While he is correct that N.J.A.C. 10A:71-

3.17(b) requires the Board to provide an inmate with a hearing at

least thirty days in advance of an inmate's actual parole

eligibility date, Palmer's parole eligibility date coincided with

his sentencing date. This is because at the time of sentencing,

8 A-2427-14T3 Palmer had earned 2,635 jail credits, making him eligible for

parole immediately upon sentencing. However, until sentenced, his

eligibility for parole was not triggered.

Equally without merit is Palmer's contention that his

disciplinary infractions committed while housed at the Cumberland

County Jail should not have been a factor in the parole decision.

N.J.A.C. 10A:71-3.11(b) requires consideration of an inmate's

"[c]ommission of an offense while incarcerated." Palmer's

reliance upon Bryan v. Dep't of Corrs., 258 N.J. Super. 546 (App.

Div. 1992), is misplaced. There the inmate was disciplined by the

Department of Corrections for infractions he committed while he

was an inmate at a county jail. He argued that he was not subject

to state regulations while housed at a county jail. Id. at 548.

We found that he could be disciplined, but remanded for a

determination whether he received notice of the sanctions for the

infractions that he previously committed. Id. at 552.

Here, no sanctions have been imposed. The only notice to

which Palmer was entitled is notice of his parole eligibility.

See N.J.A.C. 10A:71-3.6. The factors that must be considered in

a parole decision are published regulations contained in the New

Jersey Administrative Code. N.J.A.C. 10A:71-3.1 to -3.56. These

regulations are not hidden, and every inmate, including Palmer,

is presumed to know the parole regulations. See State v. Moran

9 A-2427-14T3 202 N.J. 311, 320-21 (2010) (rejecting the defendant's claim that

she was not on fair notice of the sentencing penalties for reckless

driving and stating that "[i]gnorance of a sentencing provision

that is published in the codified laws of this State . . . is not

a defense. Every person is presumed to know the law.").

The remaining arguments advanced are without sufficient merit

to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

10 A-2427-14T3