ALMEEN PALMER VS. NEW JERSEY STATE PAROLE BOARD (NEW JERSEY STATE PAROLE BOARD) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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)
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(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
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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
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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).
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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
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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).
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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,
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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
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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.
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