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Russo v. New Jersey State Parole Board

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 4, 2008

ANTHONY RUSSO, APPELLANT,
v.
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.

On appeal from the New Jersey State Parole Board.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 3, 2008

Before Judges Reisner and Alvarez.

Anthony Russo appeals from a New Jersey State Parole Board (Board) decision that denied him parole and imposed a thirty-six-month future eligibility term (FET). We affirm.

Russo is currently serving a fifty-year term with a twenty-year term of parole ineligibility imposed on November 20, 1986, for a narcotics distribution offense. That term of imprisonment is to be followed by a consecutive sentence of three years imposed on December 15, 2003, for a charge of escape.

On May 7, 2007, Russo appeared before a two-member panel of the Board, which denied him parole and established the thirty-six month FET. On July 10, 2007, the panel issued an amended notice of decision affirming their prior calculations except that they applied the 1997 parole formula found in N.J.A.C. 10A:71-3.2(i). That administrative provision states that where an offender is denied parole, is serving a sentence imposed on an offense committed on or after August 19, 1997, and is required to serve an FET pursuant to N.J.A.C. 10A:71-3.21, the new parole date shall exclude reductions for commutation credits or work credits. The Board Chairman affirmed the panel's decision on October 2, 2007.

Russo's administrative appeal to the full Board contended that the panel's calculations were erroneous and that certain supportive letters from defendant's friends and family were omitted from consideration when the FET was calculated. On January 31, 2008, the full Board affirmed the panel's decision as in accord with N.J.A.C. 10A:71-3.11 and verified that the panel had considered the correspondence from Russo's friends and family. The Board also informed defendant that the calculations had been revisited by a senior staff member. The Board explained, "[T]he Adult Panel's decision is based upon a determination that a preponderance of the evidence indicates that there is a reasonable expectation that you would violate the conditions of parole if released on parole at this time."

On appeal, Russo contends the following:

POINT I

THE STATE PAROLE BOARD IMPROPERLY CALCULATED APPELLANT'S PAROLE ELIGIBILITY DATE IN VIOLATION OF N.J. CONST. ART. VI, SEC. 5, PARA. 2 AND THE U.S. CONST. AMEND. XIV.

In his brief, Russo does not explain the assertion made in his point heading claiming that the calculations violate due process. In the body of his brief, he argues instead that he should not have been subjected to the 1997 parole formula found in N.J.A.C. 10A:71-3.2(i). According to defendant, his parole release date should have been October 17, 2007, because his 2003 sentence added only fifteen months to his term, including reductions for commutation and work credits.

We apply the same standard to parole decisions as to other agency determinations. Trantino v. N.J. State Parole Bd., 154 N.J. 19, 25 (1998) (Trantino IV). Such decisions "should not be reversed by a court unless found to be arbitrary . . . or an abuse of discretion." Ibid. The Board's decisions regarding parole are highly individualized, and the Board has significant discretionary power in making its release decision. Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (Trantino VI). In deciding whether the Board's decision was arbitrary and capricious, the parole denial must be examined against a three-part standard. First, we must determine whether the agency's action violated express or implied legislative policy. Trantino IV, supra, 154 N.J. at 24. Secondly, we must assess whether the record contains substantial evidence to support the agency's decision. Ibid. Finally, we must evaluate whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not have been reasonably made. Ibid. In this case, the Board's decision was in accord with applicable law and legislative policies and was supported by substantial evidence.

Although it is true that Russo's sentence includes pre-1977 offenses, his most recent sentence was for the 2003 escape, a post-1997 crime. It is therefore appropriate to apply N.J.A.C. 10A:71-3.2(i) in calculating his FET and to discount commutation and work credits.

Russo has an extensive and serious prior criminal history, has not been deterred by past incarceration, and is presently serving a sentence for more than one crime. He previously violated probation and parole by committing new offenses. He has even committed serious institutional infractions, the last of which occurred on September 11, 2006, a mere eight months prior to the review of his parole status. The record clearly contained substantial evidence to support the agency's decision to deny parole and impose a thirty-six month FET. The panel properly adhered to the post-1997 parole guidelines and calculated the thirty-six month FET based on appropriate factors. See N.J.A.C. 10A:71-3.11(a) and (b). Therefore, we affirm.

20081204

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