October 27, 2008
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 September 29, 2008
Before Judges Collester and Graves.
M.C., a state prison inmate, appeals from a New Jersey State Parole Board (Board) decision that denied parole and imposed a thirty-two-month future eligibility term (FET). We affirm.
On November 21, 2003, M.C. pled guilty to second-degree endangering the welfare of a child and fourth-degree contempt.
M.C.'s pre-sentence report included the following background information:
[M.C.] committed the endangering offense for his own sexual gratification. He explained that he believes that he was under the influence of alcohol and prescription drugs on each occasion when he was sexually involved with his daughter. He indicated that his fiancée (common law spouse) was not fulfilling her marital obligation, even though they were not married, and he took out his sexual frustration on his daughter.
He explained that he violated the
[c]court [o]rder prohibiting him from having contact with his children because of a misunderstanding on his part when he was playing at the park with a puppy he bought for his daughter.
In addition, an evaluation prepared by the Adult Diagnostic Treatment Center at Avenel contained the following findings and recommendations:
With regard to the referral question for this evaluation, the evidence reviewed and elicited is insufficient to support a finding that his actions in the present offense were performed repetitively and compulsively. The evidence from the victim would appear to support the fact that Mr. M.C. sexually abused her on multiple occasions. Unfortunately, the psychological evidence to support a finding that Mr. M.C.'s actions were compulsively performed is lacking. Whether this is because he is currently in psychological denial of his emotions and urges or because he is more psychopathic and hedonistic in his motivations is not clear at this time. In any case, he is not eligible for sentencing under the purview of the New Jersey Sex Offender Act.
Nonetheless, there is clearly a considerable reason for concern in this case. It is strongly recommended that Mr. M.C. participate in alcohol rehabilitation counseling in whatever alcohol rehab services may be available to him in the New Jersey State Prison complex during his sentence. Perhaps, after he has addressed his issues with alcohol, he may be more prepared psychologically to address the reasons that he sexually abused his daughter. She has described a very coercive, manipulative and extensive history of sexual abuse.
When M.C. was sentenced on January 29, 2004, he was forty years old. He was sentenced to an eight-year prison term for endangering the welfare of a child and a one-year consecutive term for contempt. At sentencing, the court noted M.C. had "minimized his conduct" by claiming his unlawful actions had occurred on only "a few occasions when he was intoxicated."
On appeal, M.C. makes the following arguments:
THE DECISION TO DENY PAROLE AND IMPOSE A 32 MONTH (FET) WAS ARBITRARY, CAPRICIOUS AND UNLAWFUL IN THAT THE BOARD HAS UTTERLY FAILED TO DOCUMENT BY A PREPONDERANCE OF THE EVIDENCE THAT THERE EXISTS A REASONABLE EXPECTATION M.C. WILL VIOLATE THE CONDITIONS OF HIS PAROLE. THEY HAVE FAILED TO MEET THEIR BURDEN.
THE PAROLE BOARD USURPED THE AUTHORITY OF THE SENTENCING COURT BY IMPOSING A DE FACTO STIPULATED MANDATORY TERM IN VIOLATION OF ESTABLISHED SENTENCING GUIDELINES.
After reviewing the record and applicable law, we are satisfied these contentions do not warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(D) and (E). Nevertheless, we add the following comments.
On August 9, 2006, a two-member panel of the Board denied M.C. parole and established a thirty-two-month FET. The panel determined "there is a reasonable expectation that [M.C.] will violate conditions of parole if released on parole," and the panel detailed its reasons for its decision. In response to M.C.'s administrative appeal, the full Board affirmed the panel's decision. In a four-page written decision dated May 24, 2007, the Board found the panel had considered all of the pertinent information, pursuant to N.J.A.C. 10A:71-3.11, and the Board determined the panel documented, by a preponderance of the evidence, there was a reasonable expectation that M.C. would violate the conditions of parole if he was released on parole.
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). M.C. was entitled to be released on parole unless the information developed or produced at his parole hearing indicated by a preponderance of the evidence that he failed to cooperate in his rehabilitation or there was "a reasonable expectation that [he would] violate conditions of parole" if he was released. N.J.S.A. 30:4- 123.53(a).
When reviewing a final decision of a state agency, such as the Parole Board, we must determine "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record considering the proofs as a whole." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (internal quotation marks omitted). The Parole Board's decision will 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." 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 the State Lottery, 210 N.J. Super. 485, 495 (App. Div. 1986)), certif. denied, 111 N.J. 649 (1988).
Applying these principles to the facts in this case, we find no basis to disturb the Board's final decision. While acknowledging M.C.'s participation in certain programs and other mitigating factors, the Board found the panel correctly concluded that M.C. minimized his unlawful conduct, lacked insight into his criminal behavior, failed to sufficiently address his substance abuse problem, and he showed no remorse or empathy toward the victim. Thus, the Board found there was a reasonable expectation that M.C. would violate the conditions of parole if he was released because the factors which contributed to his criminal conduct still existed. Our review of the record confirms the Board's decision to deny parole and to establish a thirty-two-month FET was supported by substantial credible evidence. Consequently, the Board's decision is neither arbitrary, capricious, nor unreasonable.
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