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Frazier v. New Jersey State Parole Board

October 31, 2007

ANTHONY FRAZIER, APPELLANT,
v.
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.



On appeal from a Final Judgment of the New Jersey State Parole Board.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 15, 2007

Before Judges Graves and Alvarez.

This is an appeal by a state prison inmate, Anthony Frazier, from a Final Administrative Decision of the State Parole Board (Board) denying him parole and establishing a twenty-seven month future eligibility term (FET). We affirm.

On April 25, 1991, a jury convicted Frazier of first-degree robbery, third-degree possession of a weapon, and second-degree possession of a weapon for an unlawful purpose. On June 27, 1991, Frazier was sentenced to a twenty-year prison term, with ten years of parole ineligibility for robbery. On the same date, Frazier entered guilty pleas to the following additional charges: first-degree robbery, second-degree possession of a weapon for an unlawful purpose, and third-degree receiving stolen property. He received a concurrent twenty-year sentence for the robbery and a consecutive five-year sentence for receiving stolen property. The court provided the following reasons for the sentence:

The [c]court found the following aggravating factors: The risk that the defendant will commit another offense and the need for deterring the defendant and others from violating the law.

This Indictment is a Graves Act offense. Defendant's record is bad. This sentence was intended to be punitive and to protect society from this type of handgun criminal.

On August 5, 2002, Frazier was paroled. But in April 2005, Frazier was arrested for violating parole and was returned to custody for failing to report as instructed. Frazier's parole was revoked on June 29, 2005, and, in accordance with N.J.A.C. 10A:71-7.17B(a)(3), he was given a twelve-month FET. On November 10, 2005, pursuant to N.J.A.C. 10A:71-3.15(b), Hearing Officer Fernando Torres referred Frazier's case to a Board Panel. Following a hearing on February 17, 2006, a two-member Adult Panel denied parole and established a twenty-seven-month FET. On June 27, 2006, Frazier appealed that decision to the full Board, which affirmed the Adult Panel's determination on November 2, 2006.

The Board's reasons for affirming the Adult Panel's decision included the following:

During the consideration of your claims, the full Board determined that the Panel appropriately considered the aggregate of all relevant material facts pursuant to N.J.A.C. 10A:71-3.11 and fully documented and supported their reasons for denying parole pursuant to N.J.A.C. 10A:71-3.18(f). A review of the Notice of Decision clearly indicates that the Panel noted as mitigation, average to above average institutional reports and attempt[s] made to enroll and participate in programs but was not admitted. With regard to your program participation, the record indicates that you did participate in programs prior to your return to custody on April 12, 2005, however, you have not participated in any programs since your return. In light of this, the Panel did not note your program participation as a mitigating factor nor did the Panel deny parole for a lack of program participation.

The full Board found that the Panel based its decision to deny parole on sufficient credible evidence in the record. The record indicates that you have a prior criminal record consisting of eight convictions, you are presently incarcerated for a multi-crime conviction and the nature of your criminal record is increasingly more serious. In addition, you have experienced prior incarceration, several opportunities on community supervision, with a violation of parole, which have failed to deter your criminal behavior. Further, you committed a serious asterisk infraction on November 12, 2005, resulting in significant loss of commutation time and confinement in administrative segregation.

Furthermore, the full Board found that the Panel determined that you lack insight into your criminal behavior, you minimize your conduct and deny the crime as evidenced by the Panel interview. This determination does not indicate that the Panel failed to comply with the Board's Code of Professional Conduct as you allege.

The full Board found that the record does not support your contention that the Panel based its decision on a "gut reaction." The Panel's decision is based on a careful review of the factual information in your case and the reasons for denial are fully documented in its Notice of Decision. The full Board found that there ...


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