                                NOT FOR PUBLICATION WITHOUT THE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-0661-17T4

JEFFREY B. LEWIS,

          Appellant,

v.

NEW JERSEY STATE
PAROLE BOARD,

     Respondent.
________________________

                    Submitted February 5, 2019 – Decided February 26, 2019

                    Before Judges Geiger and Firko.

                    On appeal from the New Jersey State Parole Board.

                    Jeffrey B. Lewis, appellant pro se.

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Melissa Dutton Schaffer, Assistant
                    Attorney General, of counsel; Christopher C.
                    Josephson, Deputy Attorney General, on the brief).

PER CURIAM
        Jeffrey B. Lewis appeals from a final Parole Board decision denying

parole and establishing a sixty-month future eligibility term (FET). We affirm.

                                          I.

        Lewis is serving a life sentence with a thirty-year parole disqualifier for

the first-degree murder of a twenty-three-year-old man, G.H.1 According to

Lewis, G.H. and T.R. were close friends. Lewis's then eight-year-old daughter

told him that T.R. exposed himself to her, leading to lewdness charges being

filed against T.R. After Lewis's daughter changed her story, the lewdness

charges were dropped but Lewis's hostility towards T.R. persisted. While Lewis

was driving in Asbury Park one night, G.H. drove past him in the opposite

direction. After both men exited their vehicles, Lewis pointed a .38-caliber

handgun at G.H., who was unarmed. G.H. pleaded with Lewis that he had the

wrong guy. Lewis knew G.H. was "not the one" but shot him anyway in the

right eye killing him.     The Board noted Lewis had four adult convictions,

including armed robbery, assault with a dangerous weapon, and six juvenile

adjudications, including robbery and attempted robbery, resulting in three

juvenile incarcerations.




1
    We use initials to protect the privacy of the victim.
                                                                           A-0661-17T4
                                          2
      On August 23, 2017, the full Board denied parole, determining that

defendant has "failed to take full responsibility for the murder . . . by continuing

to claim that [he] acted in self-defense even though [he] initiated the

confrontation." The Board further noted that defendant showed "a lack of

satisfactory progress in reducing future criminal behavior." The following

reasons were provided by the Board for denying Lewis's application for parole:

            Prior criminal record.

            Serious nature of the offense, first-degree murder.

            Nature of criminal record increasingly more serious.

            Prior opportunities on probation have failed to deter
            criminal behavior.

            Prior incarcerations did not deter criminal behavior.

            Insufficient problem resolution, specifically, lack of
            insight into criminal behavior and minimizing his
            conduct.

            Failure to take full responsibility for the murder despite
            treatment and program participation.

      The Board approved the three-member panel's decision to establish a

sixty-month FET, citing the same reasons for denial of parole.

      On appeal, Lewis raises the following points for our consideration:




                                                                            A-0661-17T4
                                         3
POINT I:

THE BOARD PANEL'S DECISION TO DENY
PAROLE IS ARBITRARY, CAPRICIOUS AND
UNREASONABLE WITH FAILURE TO SUPPORT
BY A PREPONDERANCE OF CREDIBLE
EVIDENCE IN THE RECORD THAT LEWIS WILL
BE SUBSTANTIALLY LIKELY TO COMMIT
ANOTHER CRIME IF RELEASED ON PAROLE.

POINT II:

THE THREE-MEMBER PANEL ABUSED ITS
DISCRETION IN DECIDING TO EXTEND LEWIS'S
FUTURE ELIGIBILITY TERM (FET) TO SIXTY (60)
MONTHS.

POINT III:

THE TWO-MEMBER BOARD PANEL FOCUSED
SOLELY ON ITS OWN VERSION OF THE FACTS
OF THE CASE AND DID NOT REVIEW THE
ENTIRE RELEVANT RECORD.

POINT IV:

THE TWO-MEMBER PANEL DID NOT ADDRESS
THE REQUISITE ISSUE OF PRESUMPTIVE
PAROLE AND LEWIS'S EXPECTATION OF
PAROLE UNDER THE 2C CODE AND THE
PAROLE ACT OF 1979.

POINT V:

THE TWO-MEMBER PANEL'S DECISION TO
DENY LEWIS PAROLE AFTER THIRTY (30)
YEARS OF CONDUCTING HIMSELF AS A MODEL


                                              A-0661-17T4
                     4
            PRISONER DEFIES THE MATERIAL FACTS OF
            RECORD.

            POINT VI:

            THE TWO-MEMBER PANEL DISPLAYED A
            NOTICEABLE DISCRIMINATORY ATTITUDE OF
            BIGOTRY, ISLAMAPHOBIA AND RACISM
            TOWARDS LEWIS WHICH ENGENDERED A
            HOSTILE ENVIRONMENT.

            POINT VII:

            THE TWO-MEMBER PANEL COULD HAVE
            PAROLED LEWIS TO ITS HALFWAY BACK
            PROGRAM TO ASSIST HIM WITH RE-ENTRY
            SERVICES.

            POINT VIII:

            THE TWO-MEMBER PANEL FAILED TO APPLY
            THE ENTITLED "COMMUTATION CREDITS" TO
            EITHER THE MINIMUM (30) YEARS OR THE
            MAXIMUM (LIFE) PORTIONS OF LEWIS'S
            SENTENCE AS REQUIRED BY LAW.

      In response to the Board's brief, Lewis replied that its decision was not

supported by sufficient credible evidence in the record.

                                        II.

      Given the date of Lewis's offense, he was to 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 law of this State if released on parole at


                                                                            A-0661-17T4
                                         5
such time." N.J.S.A. 30:4-123.53(a), L. 1979, c. 441, § 9; N.J.A.C. 10A:71-

3.10(a). The determination is "essentially factual in nature." Williams v. N.J.

State Parole Bd., 336 N.J. Super. 1, 8 (App. Div. 2000).            "Parole Board

determinations are highly 'individualized discretionary appraisals . . . .'"

Trantino v. N.J. State Parole Bd., 154 N.J. 19, 25 (1998) (quoting Beckworth v.

N.J. Parole Bd., 62 N.J. 348, 359 (1973)).

      In reviewing the Board's denial of parole, we apply the same standard of

review that we apply to administrative agency decisions generally:

            (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, 154 N.J. at 24.]

With respect to the prediction that a defendant will reoffend, we must focus on

the second test – that is, whether sufficient evidence in the record supports the

decision. Ibid.

      Applying those standards, we discern no basis to disturb the Board's

decision. The panel and the Board considered, and weighed appropriately, all

applicable factors.   See N.J.A.C. 10A:71-3.11(a) to (b). While we cannot

                                                                          A-0661-17T4
                                          6
disclose the contents of the confidential psychological evaluation, we note that

it supports the Board's decision that Lewis is likely to commit another crime if

released at this time. The Board recognized the positive aspects of Lewis's

record, but it also noted numerous negative factors, including his refusal to

accept guilt for his offenses, which continues to impede his rehabilitation.

Additionally, the Board found that Lewis lacked an adequate parole plan. We

will not second-guess the Board's conclusion that the negative factors

outweighed the positive, justifying a denial of parole.

                                       III.

      We reject Lewis's argument that the Board's decision was arbitrary and

capricious. The Board reviewed his entire record; his participation in various

programs; infraction-free record; and minimum custody status maintained. But

the Board concurred in the panel's reasons for parole denial, including its

reliance on confidential materials. The Board found that Lewis erroneously

represented that he had "only one prior adult conviction," and agreed with the

panel that this supports the conclusion that he only has a "superficial

understanding" of his criminal behavior.

      Further, we reject Lewis's claim that the Board panel demonstrated bias

by suggesting he belonged to a gang due to his membership in the Five Percent


                                                                        A-0661-17T4
                                        7
Nation a/k/a Nation of Gods and Earths. Relying on N.J.A.C. 10A:71-3.11(b),

the Board concluded that "information regarding gang affiliation is relevant to

the determination of parole release[,]" and involvement in a gang may "identify

a pattern of antisocial behavior" that might continue if released on parole. We

agree, and see no merit to Lewis's claim on this issue.

                                       IV.

      We also shall not disturb the Board's decision affirming the panel's sixty-

month FET. The FET was significantly longer than the presumptive FET of

twenty-seven months under N.J.A.C. 10A:71-3.21(a)(1). However, the Board

is authorized to extend the FET where an inmate has not made "satisfactory

progress in reducing the likelihood of future criminal behavior." N.J.A.C.

10A:71-3.21(d).    We are satisfied that the sixty-month FET was neither

arbitrary, capricious, nor unreasonable, and was appropri ately based upon the

Board's determination that Lewis had a "lack of satisfactory progress in reducing

the likelihood of future criminal behavior." See McGowan v. N.J. State Parole

Bd., 347 N.J. Super. 544, 565 (App. Div. 2002) (affirming thirty-year FET based

on likelihood of recidivism).     The Board's determination is supported by

sufficient credible evidence and is entitled to deference.




                                                                         A-0661-17T4
                                        8
      To the extent not addressed, Lewis's remaining arguments lack sufficient

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

      Affirmed.




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                                       9
