October 9, 2008
ORLANDO RESTREPO,*FN1 APPELLANT,
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.
On appeal from the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 15, 2008
Before Judges Reisner and Sapp-Peterson.
Orlando Restrepo is an inmate incarcerated at Northern State Prison. He appeals from the final administrative decision of the Parole Board (Board) affirming the two-member Board Panel (panel) determination denying parole and establishing an eighteen-month future parole eligibility term (FET). We reverse with direction.
Restrepo's conviction arose out of a surveillance operation conducted in Linden where Restrepo was observed engaged in drug transactions. While he was being detained for further investigation, suspected narcotics were seized from his pocket. When questioned as to whether there were more drugs in his residence, he responded "yes" and gave officers permission to search his residence where they uncovered suspected cocaine, $50,000 in cash, and narcotics paraphernalia. He pled guilty to two counts of manufacturing and distributing a controlled dangerous substance. He was sentenced to serve two sixteen-year concurrent custodial sentences with two minimum mandatory periods of parole ineligibility totaling forty-six months.
In 2007, the panel reviewed Restrepo's suitability for parole. The panel denied parole and established an eighteen-month FET. The panel based its decision on the fact that Restrepo was serving a multi-crime conviction and that his record contained evidence of insufficient problem resolution in connection with his insight into his criminal behavior. The panel also observed "i/m [inmate] had an education and the smarts to make it in his native country (Columbia), but instead he stayed illegally in the US and became a major drug dealer." The panel found, as mitigating factors, Restrepo's lack of a prior criminal record, his infraction-free institutional record, average to above average institutional reports, and his participation in institutional programs tailored to his behavior.
Restrepo appealed the panel's determination to the full Board. The Board affirmed the panel's decision. The present appeal followed.
Restrepo raises the following points for our consideration:
THE NEW JERSEY STATE PAROLE BOARD VIOLATED MY CONSTITUTIONAL RIGHTS WHEN THEY ERRED WHEN USING INACCURATE INFORMATION WHEN CONSIDERING PETITIONER'S PAROLE HEARING OF NOVEMBER 11, 1998, AND SUBSEQUENT REVIEW HEARINGS PURSUANT TO N.J.A.C. 10:71-4(a)(1), (2) & 10:71-4(2)(1).
THE USE OF CONFIDENTIAL INFORMATION DURING MY LAST FET, AND CURRENT ANNUAL REVIEWS, IS A VIOLATION OF MY 6TH AMENDMENT RIGHT TO CONFRONT MY ACCUSER.
THE PAROLE BOARD VIOLATED MY 6TH AMENDMENT RIGHT TO COUNSEL, WHEN I WAS NOT ALLOWED [OR] GRANTED AN ATTORNEY AT MY 2ND DENIAL OF PAROLE, SO THAT I MAY EVALUATE THE "CONFIDENTIAL INFORMATION" USED TO DENY ME PAROLE.
The Board is the administrative agency charged with the responsibility of deciding whether an inmate satisfies the criteria for parole release. In re Hawley, 98 N.J. 108, 112 (1984). Its decisions are highly "individualized discretionary appraisals." Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (citing Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)) (internal quotations omitted). In that regard, the public has a legitimate interest in a correct parole eligibility decision. Id. at 114 (citing N.J. Parole Board v. Byrne, 93 N.J. 192, 210 (1983)). Otherwise, "a dangerous prisoner may be released into the community." Ibid. Judicial review of a Board's decision is limited. Trantino, supra, 166 N.J. at 173. Nonetheless, we are guided by the same principles that inform our review of the actions of any administrative agency, namely, whether the Board, in the exercise of its powers, acted arbitrarily or capriciously or unreasonably. Ibid. Moreover, "[s]ince [N.J.S.A. 30:4-123.53] creates a presumption of release on the parole eligibility date, the decision not to release must be regarded as arbitrary if it is not supported by a preponderance of evidence in the record." Kosmin v. New Jersey State Parole Bd., 363 N.J. Super. 28, 42 (App. Div. 2003) (citing N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 546-47 (App. Div. 1988)).
Here, the evidence before the Board established as mitigating factors that Restrepo had no prior convictions, had been infraction-free within the institution during the entire period of his incarceration, and had engaged in satisfactory participation in all institutional programs. As an example of Restrepo's exemplary institutional behavior, the prison chaplain wrote in a pre-parole report, "Mr. Restrepo continues to be a faithful member of the Catholic community. His attitude of respect toward staff [and] inmates has been consistent for approx[imately] five years. This positive attitude should make for a productive member of the community." Also, a confidential psychological evaluation reported that Restrepo was a low risk to violate parole, the applicable standard for parole release pursuant to N.J.S.A. 30:4-123.53(a). Additionally, there was no opinion expressed within the report that Restrepo lacked insight into his crime. Further, the Union County Prosecutor (Prosecutor), in a letter to the Board dated May 27, 2007, did not object to Restrepo's release.
Based upon this factual record, we determine the Board's findings that Restrepo is likely to engage in criminal activity in the future and that he lacks insight into his crimes are not supported by the record. "We do not lightly reverse a parole-denial decision by the Board." Kosmin v. New Jersey State Parole Bd., 363 N.J. Super. 28, 43 (App. Div. 2003). Nonetheless, the Board's expressed conclusion that there is a substantial likelihood that Restrepo will commit another crime if released and that he lacks insight into his crimes "are so far off the mark and so fundamentally contradicted by the record as to compel us to do so here." Ibid.
In view of our determination that the Board's decision is not supported by substantial credible evidence in the record, we need not address the alleged constitutional violations raised by Restrepo. Accordingly, we reverse the decision denying Restrepo parole. However, because Restrepo is not legally in the United States and it is undisputed that there exists an Immigration and Naturalization Services (INS) detainer against him, we direct, as the Prosecutor requested in his May 27, 2007 correspondence, that the Board contact INS to take custody of Restrepo.
Reversed and remanded to the Board with direction. We do not retain jurisdiction.