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Brazza v. New Jersey State Parole Board

May 2, 2008

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



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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