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Payne v. New Jersey State Parole Board


June 22, 2007


On appeal from A Final Decision of the New Jersey State Parole Board.

Per curiam.


Submitted May 1, 2007

Before Judges Weissbard and Lihotz.

Defendant, Wendy Payne, an inmate at the Edna Mahan Correctional Facility in Clinton, New Jersey, is serving a twenty-eight year sentence imposed following her May 28, 1997 conviction, after entry of a guilty plea, on two counts of conspiracy to commit murder in the second degree, N.J.S.A. 2C:11-3, and one count of attempted murder in the first degree, N.J.S.A. 2C:11-3, N.J.S.A. 2C:2-6. Payne appeals from a final decision of the State Parole Board (the Board), issued on June 29, 2006, which affirmed a Board panel's decision denying parole and establishing a forty-eight-month future eligibility term (FET). We affirm.

Payne's convictions arose from her participation in a conspiracy with Charles Pinchom, her then boyfriend, and Celestine Payne (Celestine), her mother, to obtain life insurance policies insuring the lives of two individuals, murder the individuals, and collect the policy proceeds. Between September and November 1994, Celestine purchased two separate life insurance policies on the lives of two boarders living at her home, T.C. and E.C. Celestine was named the beneficiary of the death benefit on each policy.

T.C.'s body was found wrapped in a sleeping bag in Eastside Park. Paterson Police, investigating the murder, determined that Payne had posed as T.C. to obtain a life insurance policy, naming Celestine as the beneficiary, Pinchom had actually killed T.C. by striking her with a crow bar, and Pinchom, along with Celestine, had attempted to dispose of the body.

Celestine also obtained a life insurance policy on E.C.'s life. At Celestine's urging, Payne convinced Pinchom to kill E.C. E.C. was stabbed. He later confirmed that Pinchom was the man who had attempted to kill him.

On March 6, 2002, Payne was denied parole when she first became eligible. On April 25, 2005, Payne again became eligible for parole. A hearing officer conducted the initial review and referred the case to a two-member panel, N.J.A.C. 10A:71-3.15(b). The two-member panel conducted a hearing, considered the application, and denied Payne's eligibility for parole on February 9, 2005.

Notice of this decision was sent to Payne, N.J.A.C. 10A:71-3.18(f), and she was informed that the determination of an FET was referred to a three-member panel, which reviewed Payne's case on August 10, 2005. The three-member panel's comprehensive written decision, issued October 13, 2005, denied parole and fixed a FET of forty-eight months, identifying the following factors in support of its determination: defendant's incarceration was for a multi-crime conviction; defendant had committed numerous and persistent institutional infractions; defendant's record contained an institutional infraction which was serious in nature (threatening an inmate); defendant demonstrated insufficient problem resolution, she displayed a lack of insight into her criminal behavior and minimized her conduct (specifically, she minimized blameworthiness, focusing on her mother's participation); and the crime, homicide for monetary gain, was of an especially heinous nature. Additionally, the Panel considered evidence of mitigating factors, which included defendant's participation in programs specific to behavior and participation in institutional programs, as well as the fact that she had no prior adult or juvenile convictions or arrests.

The panel set forth its detailed reasons for imposing the forty-eight month FET, stating that the schedule of presumptive future parole eligibility dates was "clearly inappropriate due to [Payne's] lack of satisfactory progress in reducing the likelihood of future criminal behavior." N.J.A.C. 10A:71-3.21.

Payne appealed and the case was sent for a full Board review. After addressing Payne's challenges to the panel's decision, the Board affirmed the denial of parole and the FET of forty-eight months on June 29, 2006.

Before us, Payne maintains that the forty-eight month FET was unwarranted and that she "should have been given the presumptive FET, which would have been twenty-seven [] months." To support her position, defendant challenges the Board's determination that she "committed numerous and persistent institutional infractions, which have resulted in detention," stating prison officials were "harassing" her and "writing bogus charges because [she] would write them up."

Our scope of review is limited. When reviewing the decision of a state agency, such as the Parole Board, we must determine whether the agency's findings could reasonably have been reached on sufficient evidence in the record. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). Generally, the actions of the Parole Board are presumed valid and reasonable, In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J. 306 (1994), as Parole Board's decisions are considered "highly 'individualized discretionary appraisals.'" Trantino v. N.J. State Parole Bd. (Trantino VI), 166 N.J. 113, 173 (2001) (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)). We must affirm unless the determination by the Board "went so far wide of the mark that a mistake must have been made.'" N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.), 111 N.J. 649 (1988) (quoting 613 Corp. v. State of N.J., Div. of State Lottery, 210 N.J. Super. 485, 495 (App. Div. 1986)). We reverse only if the decision is determined to be arbitrary or an abuse of discretion. Trantino v. N.J. State Parole Bd., 154 N.J. 19, 25 (1998). Consequently, the Board "has broad but not unlimited discretionary powers" in reviewing an inmate's parole record and rendering a release decision. Monks v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971).

Measured by these standards, we discern no basis to disturb the Board's decision denying parole and setting a FET of forty-eight months. There is nothing in the record that suggests the Board's action was either arbitrary or unreasonable. The denial of parole was made after review of the documentation provided by Payne, N.J.A.C. 10A:71-3.11(a), and after the weighing of all pertinent factors, including those set forth in N.J.A.C. 10A:71-3.11(b). Payne's challenge to the Board's consideration of institutional infractions is unfounded. Payne had been cited with four asterisk infractions and fourteen non-asterisk infractions, see N.J.A.C. 10A:4-4.1(a); seven of which occurred since her last parole hearing. Payne's argument that these infractions were "bogus" is unaccompanied by evidential support. We discern no basis on which to reverse the Board's determination, which reflects its expertise applied to defendant's individual application for parole.



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