CORNELL BROWN VS. NEW JERSEY DEPARTMENT OF CORRECTIONS (NEW JERSEY DEPARTMENT OF CORRECTIONS) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-3009-18T2
CORNELL BROWN,
Appellant,
v.
NEW JERSEY STATE
PAROLE BOARD,
Respondent.
_____________________
Submitted November 16, 2020 – Decided December 4, 2020
Before Judges Fasciale and Susswein.
On appeal from the New Jersey State Parole Board.
Cornell Brown, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Suzanne M. Davies, Deputy
Attorney General, on the brief).
PER CURIAM
Cornell Brown appeals from a January 30, 2019 final agency decision
from the New Jersey State Parole Board (Board) denying parole and establishing
an eighteen-month future eligibility term (FET). Brown is serving an eight-year
prison sentence for carjacking. After considering statutory factors and making
specific findings that were supported by credible evidence in the record, the
Board denied parole. The Board also exercised its discretion by establishing an
FET below the statutory presumption corresponding to Brown's conviction. We
therefore affirm.
On appeal, Brown raises the following point for this court's consideration:
POINT I
THE . . . BOARD'S DECISION TO DENY BROWN
PAROLE AND IMPOSE AN [EIGHTEEN]-MONTH
[FET] WAS ARBITRARY, CAPRICIOUS OR
UNREASONABLE[.]
This court accords considerable deference to the Board and its expertise
in parole matters. Our review of a Parole Board's decision to deny parole is
"guided by the arbitrary and capricious standard that constrains other
administrative action." Acoli v. N.J. State Parole Bd., 224 N.J. 213, 222-23
(2016). "Parole Board decisions are 'highly individualized discretionary
appraisals.'" Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001)
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(Trantino VI) (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359
(1973)). We therefore must focus our inquiry on three questions:
(1) whether the agency's action violates express or
implied legislative policies, i.e., did the agency follow
the law; (2) whether the record contains substantial
evidence to support the findings on which the agency
based its action; and (3) whether in applying the
legislative policies to the facts, the agency clearly erred
in reaching a conclusion that could not reasonably have
been made on a showing of the relevant factors.
[Trantino v. N.J. State Parole Bd., 154 N.J. 19, 24
(1998) (Trantino III) (citing Brady v. Dep't of
Personnel, 149 N.J. 244, 256 (1997)).]
We "may not substitute [our] judgment for that of the agency, and an agency's
exercise of its statutorily-delegated responsibilities is accorded a strong
presumption of reasonableness." McGowan v. N.J. State Parole Bd., 347 N.J.
Super. 544, 563 (App. Div. 2002) (citations omitted). The appellant bears the
burden of showing that the Board's determination was arbitrary, capricious or
unreasonable. Ibid. (citing Barone v. Dept. of Human Serv., Div. of Med. Asst.,
210 N.J. Super. 276, 285 (App. Div. 1986)).
The Board must grant parole unless "by preponderance of the evidence
. . . there is a reasonable expectation that the inmate will violate the conditions
of parole imposed . . . if released on parole at that time." N.J.S.A. 30:4-
123.53(a). The inmate must be provided both the reasons and evidence
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supporting the denial of parole as well as the reasons and evidence supporting
the FET imposed. N.J.S.A. 30:4-123.53(b), (c). N.J.A.C. 10A:71-3.11(b)
provides a non-exhaustive list of twenty-three factors that the Board considers
when determining whether an inmate should be released on parole. The Board
does not have to consider all these factors, only those that are applicable to the
appellant's circumstances. See McGowan, 347 N.J. Super. at 561.
Under N.J.A.C. 10A:71-3.21(a)(2), after denying parole, "a prison inmate
serving a sentence for . . . any minimum-maximum or specific sentence between
eight and [fourteen] years for a crime not otherwise assigned pursuant to this
section shall serve [twenty-three] additional months." The Board panel may
increase or decrease the FET by up to nine months after considering whether
"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).
The Board's action is consistent with the applicable law, there is
substantial credible evidence in the record as a whole to support its findings, and
the Board reached conclusions based on the relevant facts. The Board made
extensive findings, which we need not repeat here, demonstrating the basis for
its decision to deny Brown parole. Additionally, the Board properly exercised
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its discretion by reducing the presumptive twenty-three-month FET to eighteen-
months after considering all relevant facts. Although Brown argues in his brief
that his prior parole was wrongfully revoked, that argument is not on appeal here
and may not be considered. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229,
234 (1973) (citation and internal quotation marks omitted) (noting the "well-
settled principle that our appellate courts will decline to consider questions or
issues not properly presented to the trial court when an opportunity for such a
presentation [was] available unless [they] . . . go to the jurisdiction of the trial
court or concern matters of great public interest"). As a result, the Board's
decision to deny parole and establish an eighteen-month FET was not arbitrary,
capricious or unreasonable.
Affirmed.
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