On appeal from a decision of the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 24, 2008
Before Judges Fisher and Baxter.
John Cooney is an inmate of the East Jersey State Prison. He appeals the State Parole Board's final determination that denied him parole and established a thirty-six month future parole eligibility term (FET). Because, after careful review, we conclude that the Board's individualized discretionary appraisal of appellant was not arbitrary, we affirm.
The record on appeal reveals the following facts. On October 25, 1975, appellant and his girlfriend were hitchhiking from Philadelphia to Newark when given a ride by Russell McDowell. During the ride, the van's occupants smoked marijuana laced with angel dust and other substances. Following a stop in New York City, appellant, his girlfriend and McDowell proceeded in the van toward Newark. They stopped along Route 21 and, after walking toward nearby railroad tracks to urinate, appellant stabbed McDowell to death. Following a jury trial, appellant was convicted of first-degree murder and armed robbery, and sentenced, on March 26, 1976, to a term of life imprisonment.
Appellant was paroled on July 30, 2003. Not long thereafter, he committed other indictable offenses.
On August 30, 2004, appellant began work at a convenience store in Manville. As he acknowledged in pleading guilty to one count of third-degree theft by unlawful taking, N.J.S.A. 2C:20-3, as charged in Indictment No. 04-09-0703, appellant removed $1,000 from the store register and safe and fled. Appellant was sentenced on July 8, 2005 to a three-year prison term and his parole on the life term was revoked.
On July 18, 2005, appellant pled guilty to having taken his sister's car on August 31, 2004 in order to drive to Newark to purchase drugs. In exchange for his plea to fourth-degree unlawful taking of a means of conveyance, N.J.S.A. 2C:20-10(b), the State agreed to dismiss a charge of third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1), which was also charged in Indictment No. 04-11-1630. Appellant was sentenced to a nine-month term of imprisonment to be served concurrently with the term imposed on the Manville theft.
Appellant became eligible for parole and his matter was considered by a two-member panel. The panel conducted a hearing on April 24, 2007, which included a lengthy interview of appellant and a thorough review of his parole file. The panel denied parole and established a thirty-six month FET. In its written opinion, the panel cited the following factors as support for its decision: appellant's prior criminal record; that he was presently incarcerated for a multi-crime conviction; that his opportunity for parole was revoked because of the commission of new offenses; that prior parole and probation opportunities failed to deter appellant's criminal behavior*fn1 ; and serious institutional infractions, which resulted in loss of commutation time, warranted administrative segregation, and were consistent with his criminal record.*fn2 In addition, the panel observed that appellant "[l]ack[ed] . . . insight into [his] criminal behavior," "[m]inimize[d] his conduct," had not "sufficiently addressed . . . [his] [s]ubstance abuse problem," and "[r]ationalize[d] his behavior and remain[ed] greatly in denial of his addiction [and] how it affects his behavior and criminal activity." The panel recommended that appellant participate in substance abuse counseling and institutional programs geared toward criminal behavior, and that he remain infraction free.
Appellant sought the Board's review of this determination. The Board affirmed and appellant appealed to this court, arguing:
THE PAROLE BOARD PANEL FAILED TO: A. CORRECTLY DISCERN THE AGGRAVATING AND MITIGATING FACTORS IN APPELLANT'S CASE AS THEY DID NOT RECOGNIZE (1) THAT APPELLANT WAS ATTEMPTING TO ADDRESS THE SPECIFIC CRIMINAL BEHAVIOR BY PARTICIPATING IN AND SEEKING SUBSTANCE ABUSE PROGRAMS, (2) THAT APPELLANT TOOK FULL RESPONSIBILITY FOR HIS ADDICTION, (3) THAT EXIGENT CIRCUMSTANCES MUST BE CONSIDERED THAT INTENSIVE TREATMENT PROGRAMS ONLY BECOME AVAILABLE IN THE COMMUNITY; AND B. THE DATE AFFIXED TO THE THIRTY-SIX MONTH (FET) DATE WAS INCORRECTLY CALCULATED.
Our standard of review requires that we recognize that the Board's decisions involve "highly 'individualized discretionary appraisals.'" Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)). In making such determinations, the Board has "broad but not unlimited discretionary powers" that "are always judicially reviewable for arbitrariness." Trantino, supra, 166 N.J. at 173 (quoting Monks v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971)). In essence, the decision to withhold parole necessarily involves "a discretionary assessment of a multiplicity of imponderables entailing primarily what a man is and what he may become rather than simply what he has done." Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 10, 99 S.Ct. 2100, 2105, 60 L.Ed. 2d 668, 677 (1979). We are satisfied that ...