May 2, 2008
ANTHONY BRAZZA, APPELLANT,
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.
On appeal from a Final Agency Decision of the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 14, 2008
Before Judges Parrillo and Gilroy.
Appellant inmate Anthony Brazza appeals from a final decision of respondent, New Jersey State Parole Board (Parole Board), denying him parole and establishing a twenty-four-month future eligibility term (FET). We affirm.
The relevant facts are as follows. During a two-week crime spree, from March 13, 2003 to March 27, 2003, Brazza committed four separate burglaries and two arsons in Union County. Four of these incidents involved breaking into the residences of Brazza's ex-girlfriend, J.M., and her parents, burglarizing and setting fires thereto. Another involved breaking into J.M.'s car, damaging the interior and taking a garage door opener used to later break into her parent's home. Yet another incident involved burglarizing Brazza's former residence and stealing jewelry, which he later pawned.
Brazza was arrested and charged with four counts of burglary and two counts each of aggravated arson and theft by unlawful taking. While on bail for these charges, Brazza was arrested on charges of forgery and theft by deception, arising from a claim by a former employer, A.C., that A.C.'s bank had cashed a $400 check in the name of Anthony Brazza that had not been signed or authorized by A.C. On June 23, 2004, Brazza pled guilty to two counts of aggravated arson, and one count each of burglary and theft by deception. On August 27, 2004, he was sentenced to an aggregate term of eight years in prison.
The instant crimes were preceded by three juvenile arrests resulting in adjudications for theft by unlawful taking and terroristic threats, for which Brazza was sentenced to two years probation. As an adult, aside from the present offenses, Brazza was arrested on seven occasions, resulting in municipal court convictions for harassment, obstruction of the administration of law, disorderly conduct and shoplifting. On June 4, 2002, Brazza was sentenced to six months probation for the harassment conviction. Brazza also has had one institutional disciplinary infraction during his present incarceration. On May 23, 2005, he was found guilty of the asterisk offense of possession or introduction of any prohibited substance such as drugs, intoxicants or related paraphernalia, which resulted in the loss of 180 days of commutation credits.
Brazza first became eligible for parole on November 20, 2006, after serving approximately one year and ten months. Following an initial hearing on May 26, 2006, the matter was referred to a Board panel based on the following factors: the mandate of N.J.A.C. 10A:71-3.15(b);*fn1 the serious nature of the commitment offenses; the fact that Brazza's prior criminal record is extensive; the fact that Brazza is presently incarcerated for a multi-crime conviction; the fact that Brazza's prior opportunities on probation had failed to deter his criminal behavior; Brazza's commission of an institutional disciplinary infraction for possession of narcotics; an unfavorable interview, in which Brazza demonstrated a lack of insight into his crimes, which he attributed to mere poor judgment and being upset and angry; and, the fact that Brazza had committed a crime while on bail.
On August 17, 2006, a two-member Board panel denied parole and established a twenty-four-month FET. Its notice of decision reflected the following factors: a prior criminal record that has become increasingly more serious; the multi-crime conviction underlying his present incarceration; the failure of prior probationary opportunities to deter criminal behavior; commission of an institutional disciplinary infraction for possession of narcotics; insufficient problem resolution, specifically, a minimization of conduct and a failure to sufficiently address a substance abuse problem, as demonstrated by the panel interview and documentation in the case file; commission of a crime while on bail; and, a risk assessment evaluation, which indicated that Brazza was a "medium" risk to re-offend. Regarding mitigating factors, the Board panel noted Brazza's participation in institutional programs and in programs specific to behavior.
Brazza appealed to the full Board. On May 24, 2007, the full Board affirmed the denial of parole and the imposition of a twenty-four-month FET. In doing so, the Board rejected Brazza's contention that the two-member panel failed to state the reasons for denial of parole on the record, finding instead that "the Panel's Notice of Decision is a matter of record. The Panel's reasons for denial are cited and fully documented and supported in its Notice of Decision." And as to those reasons, the Board further found:
[Y]ou have not identified any material facts the Adult Panel failed to consider, or provided any documentation or credible evidence to support your contention that the Panel failed to document that there is a reasonable expectation that your client will violate the conditions of parole if released. The Board found that there is sufficient credible evidence contained in the record to support the Panel's determination. Therefore, the Board found your contentions to be without merit.
The full Board found that the Adult Panel appropriately considered your client's prior criminal record, noted its nature is increasingly more serious and that he is presently incarcerated for a multi-crime conviction. It was also noted that his prior opportunity on probation failed to deter his criminal behavior. In addition, the Panel noted that he received an institutional infraction on May 23, 2005 for the Possession or Introduction of any Narcotic Paraphernalia, Drugs or Intoxicants. The Panel also noted your client's insufficient problem resolution, specifically minimizing his conduct and not sufficiently addressing his substance abuse problem as demonstrated by his Panel interview and documentation in the case file. The Panel noted that he has taken programs and is working toward his rehabilitation, however he needs to remain charge free. Finally, the Panel noted his commission of a crime while on bail and the results of his risk assessment evaluation.
On appeal, Brazza reiterates his contentions below that the panel failed to state its reasons on the record and the evidence is insufficient that he will violate conditions of parole, N.J.S.A. 30:4-123.53. We disagree and affirm substantially for the reasons stated by the full Board in its written decision of May 24, 2007. We add only the following comments.
The pertinent standard is that the inmate shall be released on parole unless, by a preponderance of the evidence . . . there is a reasonable expectation that the inmate will violate conditions of parole . . . if released on parole at that time. [N.J.S.A. 30:4-123.53(a).]
As amended on August 19, 1997, L. 1997, c. 213, § 1, the statute is intended to grant the Board greater discretion in parole matters. Assembly Law & Public Safety Committee, Statement to Assembly No. 21 (enacted as L. 1997, c. 213, § 1).
Indeed, because Parole Board determinations are "highly individualized discretionary appraisals," a decision of the Board concerning an inmate's suitability for parole under the statutory standards should not be reversed by a court unless found to be arbitrary or an abuse of discretion. Trantino v. N.J. State Parole Bd., 154 N.J. 19, 25 (1998) (citations omitted). We further recognize that the question whether a statutory standard has been met is "'essentially factual in nature,'" and that judicial review is limited to determining whether the Parole Board's "'factual finding could reasonably have been reached on sufficient credible evidence in the whole record.'" Id. at 24 (quoting N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.), certif. denied, 111 N.J. 649 (1988)). In addition, in reviewing the Parole Board's determination whether the standard for release has been met, we must give due regard to the ability of the factfinder to judge credibility and, where an agency's expertise is a factor, to that expertise. State v. Locurto, 157 N.J. 463, 470-71 (1999); In re Polk License Revocation, 90 N.J. 550, 578 (1982). Under this standard, the Parole Board's decision should only be set aside "'if there exists in the reviewing mind a definite conviction that the determination below went so far wide of the mark that a mistake must have been made.'" Cestari, supra, 224 N.J. Super. at 547 (quoting 613 Corp. v. State, Div. of State Lottery, 210 N.J. Super. 485, 495 (App. Div. 1986)).
The overall legislative scheme is designed to minimize the likelihood of future criminal behavior and to limit the parole opportunity to those instances where there is a reasonable probability that the inmate will be law abiding. This is a "highly predictive and individualized discretionary appraisal," Thompson v. N.J. State Parole Bd., 210 N.J. Super. 107, 115 (App. Div. 1986) (citations omitted), which necessarily takes into account "the aggregate of all of the factors which may have any pertinence[,]" Beckworth v. New Jersey State Parole Bd., 62 N.J. 348, 360 (1973), including those set forth in N.J.A.C. 10A:71-3.11(b).
The regulation contains a non-exhaustive list of factors that the Board may consider in determining whether an inmate should be released on parole. N.J.A.C. 10A:71-3.11(b). The Board must consider, among other factors: facts and circumstances of the underlying offense; aggravating and mitigating factors surrounding the offense; adjustment to previous probation, parole and incarceration; commission of serious disciplinary infractions; nature and pattern of previous convictions; participation in institutional programs; mental and emotional health; statements by institutional staff, with supporting documentation, that the inmate is likely to commit a crime if released on parole; statements by the inmate reflecting on whether there is a reasonable expectation that he will violate conditions of parole; and, the results of an objective risk assessment instrument. Ibid.
These factors were fully considered by the Board in this case and its decision denying parole and establishing the FET is amply supported by the evidence. Thus, for instance, the record demonstrates that aside from the instant crimes, prior criminal record, institutional infraction and prior probationary activities, Brazza has failed to take full responsibility for his actions, has minimized his repetitive misconduct, and has not fully resolved either his motivation for such conduct or his substance abuse problem, as demonstrated by the panel interview*fn2 and documentation in the case file; Brazza's commission of a crime while on bail; and, a risk assessment evaluation, which indicated that Brazza was a "medium" risk to reoffend. His failures in these respects, well supported in the evidence, clearly demonstrate a reasonable likelihood that Brazza may violate the terms and conditions of his parole if released.
We also reject Brazza's contention, as devoid of merit, that the matter be remanded because the Board panel failed to state its reasons "on the record." R. 2:11-3(e)(1)(E). The reasons for denial were expressly noted in the panel's August 27, 2006 Notice of Decision, which provided Brazza ample notice of the reasons for denial.
Lastly, as to the twenty-four-month FET, which is one month longer than the standard FET for aggravated arson, N.J.A.C. 10A:71-3.21(a)(2), suffice it to say the Board's decision was well supported by the record, including Brazza's demonstrated minimization of his crimes, his failure to sufficiently address his drug problem, and the concomitant need, as found by the Board, for additional programming to assist him in accepting responsibility for his actions and in overcoming his substance abuse problem.