CLIFFORD GRAF VS. NEW JERSEY STATE PAROLE BOARD (NEW JERSEY STATE PAROLE BOARD) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-1608-19
CLIFFORD GRAF,
Appellant,
v.
NEW JERSEY STATE
PAROLE BOARD,
Respondent.
Submitted March 22, 2021 – Decided May 13, 2021
Before Judges Sabatino and Currier.
On appeal from the New Jersey State Parole Board.
Clifford Graf, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Suzanne Davies, Deputy Attorney
General, on the brief).
PER CURIAM
Appellant Clifford Graf appeals from the final administrative decision of
the New Jersey State Parole Board (Board), denying parole and setting a thirty-
six-month future eligibility term (FET). We affirm.
In 1986, appellant was convicted by a jury of two counts of murder and
other offenses and sentenced to a term of life imprisonment with a minimum
parole ineligibility period of thirty-two years. While incarcerated, appellant
committed twenty-five disciplinary infractions, including one "asterisk" (most
serious) infraction. Appellant's most recent infraction occurred in October 2009.
Appellant first became eligible for parole in 2017. In April 2017, the
Board denied parole and set a thirty-six-month FET.
After appellant became eligible for parole for the second time in 2019, a
hearing officer referred his case to a two-member Board panel for a hearing. On
February 22, 2019, the panel conducted a hearing and referred the matter to the
Board for parole consideration. However, several days later, a member of the
panel recused himself after he recalled being involved in the investigation of
appellant's criminal case while he was employed by the State police. Therefore,
the Board vacated the February 2019 decision and recommendation and
scheduled a new hearing.
Appellant's new hearing took place on March 15, 2019 before a two-
member panel. The panel denied parole and established a thirty-six-month FET.
Its denial was based on: (1) the facts and circumstances of appellant's offense,
specifically the commission of murder; (2) his extensive prior offense record;
A-1608-19
2
(3) his repetitive offense record; (4) his criminal record becoming increasingly
more serious in nature; (5) his commitment to incarceration for multiple
offenses; (6) his prior opportunities on community supervision had failed to
deter criminal behavior; (7) his prior incarcerations did not deter criminal
behavior; (8) his institutional infractions that were numerous, persistent, serious
in nature, and resulted in loss of commutation time and administrative
segregation; (9) his insufficient problem resolution, specifically a lack of insight
into his criminal behavior; and (10) an objective risk assessment evaluation
indicating he had a moderate risk of recidivism.
The two-member panel also found several mitigating factors: (1) appellant
completed all opportunities on community supervision without violations; (2)
his participation in programs specific to his behavior; (3) his participation in
institutional programs; (4) his institutional reports reflected favorable
institutional adjustment; (5) he had achieved/maintained minimum custody
status; (6) he had commutation time restored; and (7) his letters of support and
accomplished academic degrees.
Thereafter, appellant appealed the panel's decision to the full Board. The
Board issued a final agency decision on November 13, 2019 affirming the
panel's denial of parole and imposition of a thirty-six-month FET. The Board
A-1608-19
3
rejected appellant's arguments and found the panel's decision was "based upon
a determination that a preponderance of the evidence indicate[d] that there [was]
a substantial likelihood that [appellant] would commit a crime if released on
parole at [that] time."
On appeal, appellant argues that the Board acted arbitrarily and violated
his right to procedural due process by vacating the panel's February 2019
decision after a member of the panel improperly recused himself. We disagree.
Our standard of review of administrative decisions by the Board is limited
and "grounded in strong public policy concerns and practical realities." Trantino
v. N.J. State Parole Bd. (Trantino II), 166 N.J. 113, 200 (2001). "The decision
of a parole board involves 'discretionary assessment[s] of a multiplici ty of
imponderables . . . .'" Id. at 201 (alteration in original) (quoting Greenholtz v.
Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 10 (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, this court "may overturn the Parole Board's decisions only
if they are arbitrary and capricious." Ibid. With respect to the Board's factual
findings, we do not disturb them if they "could reasonably have been reached on
A-1608-19
4
sufficient credible evidence in the whole record." Id. at 172 (internal quotation
marks omitted) (quoting Trantino v. N.J. State Parole Bd. (Trantino I), 154 N.J.
19, 24 (1998)).
Because appellant committed the offenses for which he is incarcerated in
1985, his parole eligibility is governed by N.J.S.A. 30:4-123.53(a), which states
that an inmate shall be released on parole unless "by a preponderance of the
evidence . . . there is a substantial likelihood that the inmate will commit a crime
under the laws of the State of New Jersey if released on parole." N.J.S.A. 30:4-
123.53(a), L. 1979, c. 441, § 9; N.J.A.C. 10A:71-3.10(a); see Perry v. N.J. State
Parole Bd., 459 N.J. Super. 186, 194 (App. Div. 2019) (explaining that "[p]arole
for a conviction imposed on offenses committed before August 18, 1997, 'is
governed by the standard[s] in N.J.S.A. 30:4-123.53(a) and 30:4-123.56(c) prior
to the amendment of those statutes on that date.'") (quoting Williams v. N.J.
State Parole Bd., 336 N.J. Super. 1, 7 (App. Div. 2000)). The State has the
burden to meet the standard. Trantino II, 166 N.J. at 197.
In its determination of parole eligibility, the Board must consider the
aggregate of all pertinent factors, including twenty-four enumerated, non-
exhaustive factors. N.J.A.C. 10A:71-3.11(a) to (b). We are satisfied the Board
A-1608-19
5
properly reviewed the relevant evidence and statutory factors in considering and
denying appellant parole. The Board also considered several mitigating factors.
In considering the FET, when a panel denies parole to an inmate serving
a sentence for murder, the standard FET is twenty-seven months. N.J.A.C.
10A:71-3.21(a)(1). However, the 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 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). Here, the panel increased the standard FET by nine months. In doing
so, the panel considered the nature and circumstances of appellant's offense, his
institutional adjustment, and his insufficient problem resolution.
The Board's findings are neither arbitrary nor unreasonable, but rather are
supported by credible evidence. The Board has authority to make the assessment
as to the expectation that an inmate will commit a crime if released on parole.
The Board's decision to deny parole and set a thirty-six-month FET is supported
by sufficient credible evidence in the record and consistent with the applicable
law.
We discern no merit in appellant's argument that he was denied his due
process rights by the panel member's recusal or the Board's subsequent decision
A-1608-19
6
to vacate the panel's 2019 decision. As an initial matter, it was proper for the
panel member to recuse himself given the requirement in Section IX of the New
Jersey Uniform Ethics Code that a state employee is "required to recuse
him/herself on an official matter if he/she had any involvement in that matter,
other than on behalf of the State, prior to commencement of his/her State
service." Because the panel member had been involved in investigating
appellant in 1985, it was appropriate for him to recuse himself. Once the
original panel member was disqualified, the Board was required to vacate the
panel's decision, assign a new Board member and reconvene the panel. See
N.J.A.C. 10A:71-1.5(e). Accordingly, the Board appropriately applied its
discretion in vacating the panel's February 2019 decision.
To the extent we have not addressed all of appellant's contentions, we find
they lack sufficient merit to warrant discussion in a written decision. R. 2:11-
3(e)(1)(E).
Affirmed.
A-1608-19
7