May 16, 2008
ROBERT COAR, APPELLANT,
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.
On appeal from a final decision of the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 6, 2008
Before Judges Winkelstein and Yannotti.
Appellant Robert Coar is an inmate at the South Woods State Prison in Bridgeton, serving a fourteen-year sentence for a 1999 conviction of two counts of second-degree sexual assault and one count of third-degree endangering the welfare of a child. Following a hearing and a lengthy interview of appellant, on April 27, 2007, a two-member adult panel denied appellant's parole application and established a twenty-four-month future eligibility term. It reaffirmed its decision on September 5, 2007, following reconsideration of appellant's case. Appellant appeals from a September 20, 2007 final decision of the New Jersey State Parole Board affirming and adopting the panel's recommendations. On appeal, appellant presents the following legal arguments:
THE PAROLE BOARD'S USE OF INFORMATION CONSIDERED AT PREVIOUS PANEL HEARINGS IS A VIOLATION OF THE CONSTITUTIONAL EX POST FACTO LAW UNDER THE PAROLE ACT WHICH GOVERNS THIS CASE.
THE PAROLE BOARD MAY NOT DENY PAROLE BASED ON THE FACT THAT PETITIONER CAN NOT DISCUSS THIS CASE DUE TO A PENDING POST CONVICTION RELIEF PROCEEDING.
THE PANEL FAILED TO CONSIDER TWO MITIGATING FACTORS, WHICH ARE MATERIAL FACTS.
THE PAROLE BOARD DOES NOT HAVE THE PREPONDERANCE OF EVIDENCE NECESSARY TO SUPPORT THE IMPOSITION OF AN FET.
Parole Board determinations are not to be reversed unless they are arbitrary or an abuse of discretion. Trantino v. N.J. State Parole Bd., 154 N.J. 19, 25 (1998). The standard for parole at the time appellant committed his offenses was whether there was a "'substantial likelihood that the inmate will commit a crime under the laws of this State if released.'" Trantino v. N.J. State Parole Bd., 331 N.J. Super. 577, 604 (App. Div. 2000) (quoting N.J.S.A. 30:4-123.53a). In determining whether this standard has been met, a reviewing court must examine the record and determine whether the agency's findings could reasonably have been reached from the credible evidence in the record. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). Unless the Parole Board went "so far 'wide of the mark that a mistake must have been made[,]'" its decision must not be disturbed. N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.) (quoting 613 Corp. v. State of N.J., Div. of State Lottery, 210 N.J. Super. 485, 495 (App. Div. 1986)), certif. denied, 111 N.J. 649 (1988).
Applying these criteria here, we find no basis to disturb the Parole Board's decision. The two-member panel may consider an inmate's lack of insight into the nature of his offenses and his failure to take responsibility for his crimes. N.J.A.C. 10A:71-3.11. The record supports the conclusion of the two-member panel that appellant lacks insight into his criminal behavior and a substantial likelihood exists that he will commit a new crime if released on parole.
Appellant refused to discuss his crimes with the adult panel, citing his privilege against self-incrimination. In our view, because he was unsuccessful in his direct appeal, and his post-conviction relief petition has been denied by the trial court, appellant's privilege against self-incrimination would not be violated by answering questions about the offenses for which he was convicted.
Appellant further argues that the Board improperly considered information that the Board had considered in its previous decisions to deny parole. That argument is without merit. The amendments to N.J.S.A. 30:4-123.53 provide that the Parole Board may consider all available information when determining whether to grant parole. The amendment may be applied to inmates whose crimes predate the change in the law, such as appellant's. Trantino, supra, 331 N.J. Super. at 610.
Appellant claims the two-member panel failed to consider two mitigating factors, that he had no prior criminal record before committing the subject offenses and that he attempted to enroll in programs but was not admitted. Although the two-member panel did not consider those mitigating factors in its initial determination of April 27, 2007, in its amended decision, the panel did in fact cite as mitigating factors appellant's lack of prior criminal record and his attempts to enroll and participate in programs.
Appellant's remaining arguments are without sufficient merit to warrant additional discussion in this opinion. R. 2:11-3(e)(1)(D), (E).
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