NOT FOR PUBLICATION WITHOUT THE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-3816-16T2
FRANK BOOKER,
Appellant,
v.
NEW JERSEY STATE PAROLE
BOARD,
Respondent.
_____________________________
Submitted May 21, 2018 – Decided June 15, 2018
Before Judges Ostrer and Firko.
On appeal from the New Jersey State Parole
Board.
Frank Booker, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney
for respondent (Melissa H. Raksa, Assistant
Attorney General, of counsel; Erica R. Heyer,
Deputy Attorney General, on the brief).
PER CURIAM
Appellant Frank Booker appeals from the March 29, 2017 final
agency decision of the New Jersey State Parole Board (Board)
denying him parole and imposing a 144-month future eligibility
term (FET). We affirm.
On January 27, 1987, a jury convicted appellant of murder and
aggravated arson. On April 6, 1987, appellant was sentenced to
life imprisonment with a thirty-year period of parole
ineligibility. He was also sentenced to five consecutive years
for arson. While incarcerated, appellant was indicted for
possession of a controlled dangerous substance (CDS). On October
22, 2001, he pled guilty to this charge and was sentenced to an
additional four-year concurrent term of incarceration.
Thereafter, appellant pled guilty on August 22, 2014, to conspiracy
to manufacture, distribute and disperse a CDS. He was sentenced
to a three-year concurrent term of incarceration.
Appellant became eligible for parole on January 6, 2016.
However, a two-member panel of the Board denied him parole on
January 19, 2016, and referred his case to a three-member panel
(panel) to establish a FET outside of the administrative
guidelines. The panel determined a 144-month FET was appropriate.
In an comprehensive decision, the panel noted the following
aggravating factors: (1) serious nature of the offenses; (2) his
extensive and repetitive prior criminal record; (3) his present
incarceration for multi-crime convictions; (4) his disciplinary
record during his current incarceration consisting of nine
disciplinary infractions, some of which were drug related and
several of which were offenses resulting in loss of commutation
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credits and confinement in administrative segregation; (5)
insufficient problem resolution, specifically, appellant's lack
of insight into his criminal behavior, minimization of his conduct,
and limited understanding of his inner rage; (6) his lack of an
adequate parole plan; (7) his risk evaluation score of 19,
indicating a high risk of recidivism; (8) his criminal record
becoming more serious; and (9) prior opportunities on community
supervision failed to deter his criminal behavior.
As mitigation, the panel considered appellant's participation
in institutional programs, including programs specific to
behavior; average to above average institutional reports; attempts
made to enroll in programs despite being denied admission; the
achievement and maintenance of minimum custody status; and letters
of support. In addition, the panel considered information
classified as confidential pursuant to N.J.A.C. 10A:71-2.2(c).
After considering the applicable factors in N.J.A.C. 10A:71-
3.11(b), the panel determined that appellant remained a
substantial threat to public safety, essentially for the reasons
enumerated above, warranting the setting of a FET that differed
from the presumptive term. The panel further found that, pursuant
to N.J.A.C. 10A:71-3.21(d), a 144-month FET was appropriate given
appellant's lack of rehabilitative progress, his lack of remorse
for his actions, and his justification for his criminal mindset.
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Parole supervision was not deemed appropriate. The 144-month FET
results in a projected parole eligibility date of April 22, 2022.
Appellant appealed the panel decision to the Board on August
29, 2016. On March 29, 2017, the Board upheld the recommendation
to deny parole and to impose a 144-month FET. This appeal ensued.
Appellant presents the following arguments for our consideration:
POINT ONE:
APPELLANT ARGUES THAT THE [BOARD] HAS IGNORED
AND UNDERVALUED SUBSTANTIAL EVIDENCE AND
RELIED ON THE SAME REPETITIVE, REDUNDANT, AND
REPEATED JUSTIFICATIONS TO DENY PAROLE AND
IMPOSE EXCESSIVE (FET) THAT IT HAS PREVIOUSLY
EMPLOYED UNTO INMATES SERVING LIFE TERMS FOR
MURDER.
POINT TWO:
APPELLANT CONTENDS THAT THE [BOARD]
ERRONEOUSLY REACHED ITS DECISION TO DENY
PAROLE BASED ON A PRECONCEIVED NOTION OF A
SUBSTANTIAL LIKELIHOOD THAT HE WOULD COMMIT A
NEW CRIME IF RELEASED ON PAROLE.
POINT THREE:
THE [BOARD] MISTAKENLY IMPOSED A[N] ONE-
HUNDRED AND FOURTY-FOUR (144) MONTHS FUTURE
ELIGIBILITY TERM (FET).
We have considered these contentions in light of the record
and applicable legal principles and conclude they are without
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(D). We affirm substantially for the reasons
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expressed in the Parole Board's comprehensive written decision.
We add only the following brief comments.
We must accord considerable deference to the Board and its
expertise in parole matters. Therefore, our review of a Parole
Board's decision is limited. Hare v. N.J. State Parole Bd., 368
N.J. Super. 175, 179 (App. Div. 2004). "Parole Board decisions are
highly individualized discretionary appraisals, and should only
be reversed if found to be arbitrary or capricious." Id. at 179-
80 (citations omitted).
We "must determine whether the factual finding could
reasonably have been reached on sufficient credible evidence in
the whole record." Id. at 179 (citations omitted). In making
this determination, 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). Accordingly, "[t]he
burden of showing that an action was arbitrary, unreasonable or
capricious rests upon the appellant." Ibid.
An inmate serving a minimum term in excess of fourteen years
is ordinarily assigned a twenty-seven-month FET after a denial of
parole. See N.J.A.C. 10A:71-3.21(a)(1). However, in cases where
an ordinary FET is "clearly inappropriate due to the inmate's lack
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of satisfactory progress in reducing the likelihood of future
criminal behavior[,]" the Board may impose a greater FET. N.J.A.C.
10A:71-3.21(d).
Here, we discern no basis to disturb the Board's decision.
The Board considered the relevant factors in N.J.A.C. 10A:71-3.11.
Its decision is supported by sufficient credible evidence in the
record and is entitled to our deference. We are satisfied that
the denial of parole and the imposition of a 144-month FET was
neither arbitrary, capricious nor unreasonable. See McGowan, 347
N.J. Super. at 547 (affirming the imposition of a thirty-year FET
based on appellant's high likelihood of recidivism).
Affirmed.
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