SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3359-18T4

FERNANDO MADRIGAL,

a/k/a DANIEL MADRIGAL,

Appellant,

v.

NEW JERSEY STATE 

PAROLE BOARD,

Respondent.

_________________________

Submitted January 5, 2021 – Decided

Before Judges Yannotti, Mawla, and Natali.

On appeal from the New Jersey State Parole Board.

Fernando Madrigal, appellant pro se.

Gurbir S. Grewal, Attorney General, attorney for 

respondent (Melissa H. Raksa, Assistant Attorney 

General, of counsel; Christopher C. Josephson, Deputy 

Attorney General, on the brief). 

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

January 27, 2021
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Appellant Fernando Madrigal, who is currently incarcerated in South 

Woods State Prison, appeals from the New Jersey State Parole Board's (Board) 

February 27, 2019 final agency decision, which upheld a decision of a twomember Board panel (panel) that denied his application for parole and imposed

a twenty-three-month future eligibility term (FET). We affirm. 

In March 2017, appellant pled guilty to two counts of sexual assault of a 

victim who is at least thirteen but less than sixteen years old, contrary to N.J.S.A.

2C:14-2(c)(4). He was sentenced to an eight-year prison term with parole 

supervision for life. 

Appellant became eligible for parole for the first time in October 2018. A 

hearing officer referred the matter to a two-member Board panel, which denied 

parole after concluding that there was a reasonable expectation that appellant 

would violate the conditions of parole if released. In explaining its decision, the 

panel cited the nature and circumstances of appellant's offenses and noted that a 

previous probationary opportunity failed to dissuade appellant from continued 

criminal behavior. It also determined that appellant lacked insight into his 

criminal behavior and minimized his conduct. In this regard, the panel explained

that appellant "showed little remorse for the [two] victims" and he had "little 

insight into why he has criminal thinking that results in this sexual crime." 
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The panel acknowledged several mitigating factors including that 

appellant successfully completed community supervision opportunities and did 

not receive any infractions while incarcerated. It also noted that appellant: 1) 

participated in specific classes to address his behavioral issues and other 

institutional programs, 2) adjusted favorably to his institutional surroundings,

and 3) provided a positive parole interview. 

On October 19, 2018, appellant appealed the panel's decision to the full 

Board. Appellant argued that the panel's decision was not supported by a 

preponderance of the credible evidence in accordance with N.J.S.A. 30:4-

123.53(a). He further maintained that the panel's application of mitigating 

factors contradicted its decision to deny parole. 

Appellant also contended that the panel's decision was "contrary to written 

Board [p]olicy" and that the panel "denied [him] his right to procedural due 

process" by failing to provide a representative for him at the hearing pursuant to 

N.J.A.C. 10A:71-3.13(g). Appellant also maintained that "a Board [m]ember 

participating in the deliberations . . . of the case . . . failed to comply with the 

Board's Professional Code of Conduct." He asserted that the hearing became 

"contentious," rendering him unable to "complete his responses to specific 

questions before being posed with a new question in an aggressive manner." 
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Finally, appellant argued that the Board employed terms without "formal 

definitions or meanings" rendering the decision unconstitutionally vague 

contrary to his due process rights. 

On February 27, 2019, the Board affirmed the panel's decision and 

rejected appellant's arguments that the panel employed an incorrect standard of 

review or that the panel's decision was unsupported by the record. The Board 

noted that the panel "considered [appellant's] entire record and based its decision 

on sufficient credible evidence" and therefore "acted appropriately and in 

accordance with the Administrative Code." The Board explained to appellant 

that: 

Based on your responses to questions posed by the 

[panel] at the time of the hearing, the [panel] 

appropriately determined that you exhibit insufficient 

problem resolution, specifically, that you lack insight 

into your criminal behavior and minimize your conduct. 

The Board finds that you have been involved in 

treatment, but have gained little insight from these 

programs. The Board further finds that your program 

participation and rehabilitative efforts are a matter of 

record. This information was included in the [c]ase 

[s]ummary prepared during your [i]nitial [h]earing and 

was considered by the [panel] . . . . 

. . . . 

Further, the Board finds that your program participation 

does not negate the fact that you still lack insight into 

your criminal behavior and minimize your conduct. 
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The Board further notes that while acknowledging the 

serious consequences of your criminal activity is a step 

towards rehabilitation, it represents only an initial 

effort at rehabilitation. The Board further finds that 

your admission of guilt may help you to develop insight 

into the causes of your criminal behavior, but does not 

equate to a change in your behavior.

The Board also rejected appellant's due process arguments and found that 

"in accordance with the Administrative Code, [appellant's] parole counselor was 

present at [the] hearing" and the "[panel] carefully and thoroughly reviewed all 

the reports contained in [appellant's] file and based its decision on the totality 

of the information in the administrative record." 

Finally, the Board determined that "there [was] no evidence to support 

[appellant's] claim that [the] hearing became contentious, . . . [that appellant 

was] asked questions in an aggressive manner[,] and [that] the [panel] did not 

allow [appellant] to complete [his] responses to questions . . . ." The Board 

found that pursuant to N.J.A.C. 10A:71-3.11(b), appellant was "asked 

appropriate questions about [his] offenses in a professional manner and the 

[panel] afforded [him] a significant opportunity to speak on several points." 

Moreover, the Board concluded that the panel "listened to [appellant's] answers 

as evidenced by the follow-up questions posed by the [panel]." 
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Before us, appellant raises the following points1:

I. THE BOARD PANEL VIOLATED WRITTEN 

BOARD POLICY BY FAILING TO 

ESTABLISH A NEXUS BETWEEN THE 

REASONS FOR DENIAL AND THE 

CONCLUSION THAT THERE EXISTED A 

SUBSTANTIAL LIKELIHOOD THAT 

APPELLANT WOULD COMMIT A NEW 

CRIME IF RELEASED ON PAROLE AT THIS 

TIME. 

II. THE HEARING OFFICER UTILIZED 

INCORRECT STANDARDS IN RENDERING 

THE DECISION TO DENY APPELLANT 

PAROLE. 

III. APPELLANT WAS DENIED A FAIR 

HEARING WHEN A HEARING OFFICER 

FAILED TO COMPLY WITH THE BOARD'S 

PROFESSIONAL CODE OF CONDUCT. 

IV. THE BOARD PANEL'S DECISION WAS 

UNCONSTITUTIONALLY VAGUE AND 

SUBJECTIVE.

V. THE BOARD PANEL DENIED [APPELLANT] 

HIS RIGHT TO PROCEDURAL DUE 

PROCESS BY FAILING TO PROVIDE A 

BOARD REPRESENTATIVE TO AID HIM 

THROUGHOUT HIS HEARINGS IN 

VIOLATION OF WRITTEN BOARD POLICY.

1 For clarity, we have renumbered the point headings in appellant's brief.
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We have considered appellant's arguments and conclude that they are 

without sufficient merit to warrant extended discussion in this opinion, Rule

2:11-3(e)(1)(E), and we affirm substantially for the reasons expressed by the 

Board in its thorough decision, which was supported by the sufficient credible 

evidence on the record as a whole, Rule 2:11-3(e)(1)(D).

2

 We add the following 

remarks. 

In reviewing a final decision of the Board, we consider: 1) whether the 

Board's action is consistent with the applicable law; 2) whether there is 

substantial credible evidence in the record as a whole to support its findings; 

and 3) whether in applying the law to the facts, the Board erroneously reached 

a conclusion that could not have been reasonably made based on the relevant 

facts. Trantino v. N.J. State Parole Bd., 154 N.J. 19, 24 (1998). The Board's 

decision to grant or deny parole turns on whether "by a preponderance of the 

evidence . . . there is a reasonable expectation that the inmate will violate 

2

 Appellant has not specifically briefed the propriety of the Board's decision to 

impose a twenty-three-month FET. Although we could consider any challenge 

to the FET waived, see Drinker Biddle & Reath, LLP v. N.J. Dep't of Law &

Pub. Safety, 421 N.J. Super. 489, 496 n.5 (App. Div. 2011), we have 

nevertheless considered the Board's FET decision on the merits and are satisfied 

the Board's establishment of a twenty-three-month FET is amply supported by 

substantial credible evidence in the record. The twenty-three-month FET was 

appropriate under the circumstances and we perceive of no basis for a downward 

adjustment. N.J.A.C. 10A:71-3.21(a)(2); N.J.A.C. 10A:71-3.21(c).
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conditions of parole . . . if released on parole." N.J.S.A. 30:4-123.53(a); 

N.J.A.C. 10A:71-3.10(b). The Board must consider the enumerated factors in 

N.J.A.C. 10A:71-3.11(b)(1)-(23) in making its decision. The Board, however, 

is not required to consider each and every factor, rather, it should consider those 

applicable to each case. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 

561 (App. Div. 2002). 

Regarding points I-IV, the Board's decision is consistent with applicable

law, there is substantial credible evidence in the record as a whole to support its 

findings, and the Board reached conclusions that were based on the relevant 

facts. The Board made extensive findings demonstrating the basis for its 

decision to deny appellant's parole. 

For example, the Board determined that based on appellant's responses to 

questions during his hearing, the information contained in his case summary, 

and the reports contained in his file, he lacked insight into his criminal behavior 

and minimized his conduct. The Board further concluded that there was no 

evidence contained within the record that indicated appellant's hearing became 

contentious. On this record, we have no reason to second-guess those findings 

or conclusions and defer to the Board's expertise in these matters. Accordingly, 

we conclude that the Board's decision was made in accordance with the 
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standards delineated in N.J.S.A. 30:4-123.53(a) as the record establishes by a 

preponderance of the evidence that there was a reasonable expectation appellant 

would violate the conditions of his parole. 

We also reject appellant's procedural due process arguments raised in 

point V. Contrary to appellant's assertion, he was not entitled to the assistance 

from a Board representative at his parole hearing. In this regard, the applicable 

regulation requires appellant to be provided with assistance from a Board 

representative, N.J.A.C. 10A:71-3.13(g), but it does not specify that assistance 

be provided at the hearing. It is only required that general assistance and advice 

be provided during the parole process, which occurred here. In any event, the 

record states that appellant's parole counselor was present to assist him 

throughout the hearing. 

Affirmed.