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Richardson v. New Jersey State Parole Board

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 30, 2008

EDWIN RICHARDSON, APPELLANT,
v.
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.

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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 8, 2008

Before Judges Cuff and Baxter.

Edwin Richardson appeals from a May 24, 2007 decision of the State Parole Board (Board) that denied him parole and established a sixty-month future eligibility term (FET). We affirm.

I.

On May 24, 1976, Richardson entered a plea of non vult to murder, and was sentenced to a term of life imprisonment. He became eligible for parole on October 5, 2006.*fn1 On September 28, 2006, a two-member Board panel conducted Richardson's hearing, denied parole, and referred the matter to a three-member panel which, on December 13, 2006, established a sixty-month FET.

Each of the two panels concluded that "a substantial likelihood exists that [Richardson] would commit a new crime if released on parole at this time." That determination was based upon the following factors: "nature of criminal record increasingly more serious"; "institutional infractions [were] serious in nature" and resulted in loss of commutation time, confinement in detention and administrative segregation; insufficient problem resolution; and Richardson's tendency to minimize his responsibility for the murder in question. The panel also concluded Richardson's claim that he had changed and had achieved "mental maturity" was belied by the tenor of Richardson's remarks during the hearing.

After the two-member panel recommended the denial of parole, the Board afforded Richardson the opportunity to present a letter of mitigation. None was ever received. Ultimately, the three-member panel recommended the sixty-month FET that we have described. On January 29, 2007, Richardson filed an appeal of both decisions to the full Board, which on May 24, 2007 affirmed the denial of parole and the establishment of the sixty-month FET.

II.

On appeal, Richardson maintains: 1) the Board erred when it failed to view his parole request indulgently because by pleading non vult, he had spared the State the inconvenience and risk of trial; 2) the integrity of the record of the hearing has been compromised because Richardson's copies of exhibits the Board considered do not correspond to each other; 3) the Board violated N.J.S.A. 30:4-123.52(c) by failing to advise him of any change in parole eligibility; and 4) the Board's decision was flawed because it did not consider any new information, in violation of N.J.S.A. 30:4-123.56(c).

Our scope of review is a narrow one, and we review Richardson's contentions in accordance with that standard. We must affirm unless the Board's decision was arbitrary, unreasonable, unsupported by credible evidence in the record or contrary to law. Trantino v. N.J. State Parole Bd., 166 N.J. 113, 172 (2001) (Trantino VI). As the Court observed, we review the Board's determination that "'there is a substantial likelihood that an inmate will commit another crime if released.'" Ibid. (quoting Trantino v. N.J. State Parole Bd., 154 N.J. 19, 24 (1998) (Trantino IV) (citation omitted)). Accordingly, a reviewing court is obligated to "'determine whether [that] factual finding could reasonably have been reached on sufficient credible evidence in the whole record.'" Id. at 24. (quoting State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.), certif. denied, 111 N.J. 649 (1988)). The Board "'has broad but not unlimited discretionary powers,' and its determinations 'are always judicially reviewable for arbitrariness.'" Trantino VI, supra, 166 N.J. at 173 (quoting Monks v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971)).

We have carefully reviewed Richardson's contentions in light of our standard of review. We are satisfied that the record amply supports the Board's conclusion that the nature of Richardson's prior criminal record began with minor juvenile delinquency offenses, including a curfew violation, progressed to possession of a controlled dangerous substance, and culminated in the instant offense of murder.

The record also supports the finding that Richardson's poor institutional adjustment establishes a likelihood of criminality if he were released on parole. Indeed, he has been convicted of three institutional infractions since January 2002, when he was last denied parole. Moreover, Richardson's cumulative disciplinary history contains sixteen asterisk infractions, which denote a serious violation of institutional rules, and 118 non-asterisk infractions that have resulted in a loss of 346 days of recreation privileges and 2,155 days of commutation credits. He has served 1,865 days of his sentence in administrative segregation. Therefore, the Board's conclusion that Richardson's poor disciplinary history demonstrates an inability to control his violent and anti-social behavior is well-supported by the record.

The panel also concluded that Richardson minimized the seriousness of the conduct that led to the murder, and deflected his own responsibility for the crime by blaming his co-defendant. The Board pointed to Richardson's comment that he was merely "assisting [his] co-defendant." After a lengthy interview of Richardson that covers nineteen pages, the panel characterized Richardson's current risk to public safety if he were to be released on parole as follows:

Instead of [gaining] any introspection on this key detail, you have instead chosen to wish others to believe that you are in a situation that was out of you[r] immediate control when the murder occurred. There is an internal characteristic that has neither been identified nor addressed by you during your incarceration. You are unable or unwilling to face your murderous behavior, thereby rendering your rehabilitative aspects obscure insofar as your specific criminal behavior is concerned. Based on this observation, it is the belief of the Board panel that your complete apathy, dismissiveness and total lack of introspection would place public safety in grave jeopardy if you were to be released on parole at this time.

Our own review of this interview leads us to concur with the Board's assessment of Richardson's attitude toward the horrendous crime he committed. The Board is entitled to consider "whether the inmate has . . . avowed responsibility for his crime." Williams v. N.J. State Parole Bd., 336 N.J. Super. 1, 8 (App. Div.), certif. denied, 165 N.J. 523 (2000). Finally, the panel based its decision on a psychological evaluation in which the psychologist described Richardson's potential for future violence as "moderate to high risk."

Consequently, we are satisfied that a preponderance of the evidence in the record demonstrates "a substantial likelihood that [he] will commit a crime if released on parole at [this] time." N.J.S.A. 30:4-123.53(a).*fn2 We are also satisfied that the same factors justify the Board's decision to increase Richardson's FET from the normal thirty-six month period to a sixty-month interval. See N.J.A.C. 10A:71-3.21(d) (specifying that in making a determination about the FET, the panel shall consider the same factors that the panel already utilized in deciding whether the inmate is suitable for parole).

III.

We turn now to the additional claims Richardson advances on appeal. We agree with the Board's argument that these issues were not presented before the Board. Consequently, they should not be considered on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Moreover, even if we were to ignore that procedural hurdle, we would decline to discuss the issues Richardson raises because they lack sufficient merit to warrant discussion in a written opinion. See R. 2:11-3(e)(1)(E).

Affirmed.


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