October 31, 2007
ANTHONY FRAZIER, APPELLANT,
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.
On appeal from a Final Judgment of the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Frazier's parole was revoked on June 29, 2005, and, in accordance with N.J.A.C. 10A:71-7.17B(a)(3), he was given a twelve-month FET.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 is no merit to your allegation that the Panel's decision is arbitrary or capricious.
Additionally, the full Board found that there is no merit to your allegations that the Panel considered inaccurate information or failed to consider material facts. Your program participation and time served on this sentence were noted on the Case Summary and were considered [by] the Panel. A review of the Notice of Decision indicates that the Panel did not deny you[r] parole based upon insufficient problem resolution or that your substance abuse problem has not been sufficiently addressed, as you allege.
Based on a consideration of the facts cited above, the full Board has determined that the Adult Panel has documented, by a preponderance of the evidence, that there is a substantial likelihood that you would commit a crime if released on parole at this time.
On appeal to this court, Frazier contends the Board's decision should be reversed, and he should be released.
However, after reviewing each of Frazier's arguments in light of the record and the applicable law, we are satisfied the Board's decision is fully supported by substantial credible evidence, R. 2:11-3(e)(1)(D), and Frazier's contentions to the contrary are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We therefore affirm with only the following comments.
The Board was not permitted to deny parole unless it found "by a preponderance of the evidence that there [was] a substantial likelihood" that Frazier would commit another crime if he was released. N.J.S.A. 30:4-123.53. "Stripped to its essentials, a parole board's decision concerns a prediction as to an inmate's future behavior, a prognostication necessarily fraught with subjectivity." Trantino v. N.J. State Parole Bd., 166 N.J. 113, 201 (2001). Consequently, when the Board reviews an inmate's record and establishes a release date, it has broad but not unlimited discretionary powers. Monks v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971). "Administrative actions, such as parole decisions, must be upheld where the findings could reasonably have been reached on the credible evidence in the record." McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002). Measured by this standard, we discern no basis to disturb the Board's determination.
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