January 27, 2009
KEREM TASCI, APPELLANT,
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.
On appeal from a final decision of the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 17, 2008
Before Judges C.L. Miniman and King.
Appellant Kerem Tasci, an inmate at Mid-State Correctional Facility, appeals from a Final Decision of the New Jersey State Parole Board denying him parole and establishing a fourteen-month future eligibility term (FET). We affirm.
Tasci had been convicted of two counts of attempted luring of a child in a motor vehicle and five counts of criminal attempt and sentence on September 22, 2006, to eight concurrent years on the two convictions of attempted luring, community supervision for life under Megan's Law, N.J.S.A. 2C:7-2, and parole supervision for life under the Violent Predator Incapacitation Act of 1994, N.J.S.A. 2C:43-6.4. Two of the criminal-attempt convictions were merged with the two attempted-luring convictions for sentencing purposes and defendant was sentenced to various concurrent terms up to eight years on the remaining counts.
Tasci first became eligible for parole in 2007 and on August 23, 2007, a two-member panel of the Parole Board denied parole and established a twelve-month FET. The panel found that there was a reasonable expectation that Tasci would violate the conditions of parole if he were released. It found five mitigating factors, including the absence of any prior criminal record or a minimal criminal record; infraction-free incarceration; participation in programs specific to his behavior; participation in institutional programs; and an attempt to enroll and participate in a program where he was not admitted. The panel denied parole because the nature of the criminal record was increasingly more serious, with the female victim assumed by defendant to be thirteen years old; presently incarcerated for multi-crime convictions; insufficient problem resolution due to lack of insight into his criminal behavior, minimization of conduct, and although he understood the need for insight, he did not yet have true insight; and the lack of an adequate parole plan to assist in successful reintegration into the community. The panel suggested that Tasci participate in one-to-one counseling and sex-offense programs. The panel reconsidered its decision on January 31, 2008, to extend the FET to fourteen months based on an error in calculating the FET.*fn1
Tasci, raising a number of issues, appealed the denial of parole to the full Parole Board, which affirmed the panel's decision and the fourteen-month FET on February 28, 2008. The Parole Board issued the following written decision:
Although there are several mitigating factors in your case, the full Board found that the Panel had an obligation to consider that you are presently incarcerated for a multi[-]crime conviction and the nature of the present conviction is serious, whereby you assumed the victim was a 13-year[-]old girl. Be advised that the Panel reconsidered your case on January 31, 2008 and decided to affirm its decision to deny parole, but to amend the Notice of Decision to clearly indicate that it considered the serious nature and circumstances of the present offense as a reason for parole denial. . . .
Furthermore, the full Board found that the Panel appropriately considered that you lack an adequate parole plan to assist in successful reintegration into the community and based on your response to questions posed by the Panel at the time of the hearing, the Panel concluded that you minimize your conduct and lack insight into your criminal behavior. Regarding your statement in reference to the institutional psychological report and the A.D.T.C. evaluation, be advised that pursuant to N.J.A.C. 10A:71-2.1(d), these reports are a matter of record and are classified as confidential and disclosure may be withheld. The full Board is not at liberty to comment on these reports. However, the full Board found that although the Panel reviewed this information, the Panel did not cite as a reason for parole denial, confidential material/professional report relief upon.
The full Board found that you have not identified any specific information to support your claim that a Board member participating in the deliberations or disposition of your case has demonstrated personal interest or demonstrated prejudice or bias in your case or that a Board member participating in the deliberations or disposition of your case has failed to comply with the Board's Professional Code of Conduct.
The full Board found that pursuant to N.J.A.C. 10A:71-3.11(c), the hearing officer or Board Panel is required to note your immigration detainer, however, this is not grounds for denial of parole. The Panel did not base their decision to deny parole on the immigration detainer nor are they mandated to release you to the Federal authorities for deportation. The same standards used to determine parole release to the community also apply to parole release to detainers. The Panel is required to review your case under the same statutory standard for review as in all cases pursuant to N.J.A.C. 10A:71-3.10(b), which in your case, requires the Panel to determine if there is a reasonable expectation that you will violate conditions of parole, if released on parole. The full Board found that although you claim that you have the support of your family in your country, your current plan to be a placement case, does not provide an adequate parole plan to assist in successful reintegration into the community.
Based upon consideration of the facts cited above, the full Board has determined that the Adult Panel has considered the aggregate of information pursuant to N.J.A.C. 10A:71-3.11 and fully documented and supported its decision for denying parole pursuant to N.J.A.C. 10A:71-3.18(f). Also, the full Board found that the 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.
This appeal followed.
Defendant raises a single issue on appeal:
POINT I -- THE PREPONDERANCE OF THE EVIDENCE DID NOT SUPPORT [A] FINDING BY THE STATE PAROLE BOARD THAT APPELLANT WAS SUBSTANTIALLY LIKELY TO COMMIT ANOTHER OFFENSE, AND THUS DENIAL OF APPLICATION FOR PAROLE WAS ARBITRARY AND UNREASONABLE.
Defendant argues that it is not likely that he will commit another offense if he is released on parole because he is a Turkish national who is in this country illegally, an Immigration and Naturalization Service (INS) detainer has been lodged against him, and he will be deported upon his release from prison. He further contends that the rehabilitative aspect of his sentence has been satisfied by his participation in a number of programs while in prison, the punitive aspect having been satisfied by the date he became eligible for parole. He asserts that he had an excellent institutional record and attempted to participate in one-on-one counseling, but was told he was not eligible for it. He claims, without any evidential support in the record, that the Parole Board is discriminating against immigrants from other countries by forcing them to serve full sentences. Finally, he urges that it is unreasonable to require him to prepare an adequate parole plan because he will be deported to Turkey upon his release.
The scope of our review of parole determinations is limited. "Our function is to determine whether the administrative action was arbitrary, capricious or unreasonable." Burris v. Police Dep't, W. Orange, 338 N.J. Super. 493, 496 (App. Div. 2001) (citing Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)). The precise issue is whether the findings of the agency could have been reached on the credible evidence in the record, considering the proofs as a whole. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). In conducting this limited review, we presume that agency action is valid and reasonable. In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J. 306 (1994). The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the person challenging the administrative action. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002) (citing Barone v. Dep't of Human Servs., Div. of Med. Asst., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987)).
The Board's decisions "are 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)). Consequently, the "Board 'has broad but not unlimited discretionary powers'" in review the inmate's record and making a decision. Ibid. (quoting Monks v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971)).
The parole decision is "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. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 10, 99 S.Ct. 2100, 2105, 60 L.Ed. 2d 668, 677 (1979). One of these "imponderables" is a prediction regarding an inmate's future behavior. "Such predictions as to future behavior are necessarily quite subjective and leave the Board with a broad discretion in the grant or denial of parole." Puchalski v. N.J. State Parole Bd., 104 N.J. Super. 294, 300 (App. Div.) (citations omitted), aff'd, 55 N.J. 113 (1969), cert. denied, 398 U.S. 938, 90 S.Ct. 1841, 26 L.Ed. 2d 270 (1970). As a consequence, the parole decision must be made by those with experience and expertise in this field. Pazden v. N.J. State Parole Bd., 374 N.J. Super. 356, 366 (App. Div. 2005); Greenholtz, supra, 442 U.S. at 10, 99 S.Ct. at 2105, 60 L.Ed. 2d at 677.
Because Tasci committed his offenses in 2005, N.J.S.A. 30:4-123.53(a) governs and provides that an inmate shall be released on parole unless "there is a reasonable expectation that the inmate will violate the conditions of parole . . . if released on parole at this time." The Parole Board must consider the aggregate of all pertinent factors, including those specified in N.J.A.C. 10A:71-3.11(b). See McGowan, supra, 347 N.J. Super. at 564 n.1. It clearly did so in this case.
We are not persuaded that Tasci's potential deportation is a pertinent factor. Even if deported, he will eventually be released into some community, in Turkey or elsewhere. Surely it would be irresponsible to release him to any community so long as it is reasonable to expect that he will violate the conditions of parole. With respect to the balance of the arguments made by Tasci on appeal, after carefully reviewing the record in the light of the written arguments advanced by the parties, we conclude that the issues presented by Tasci are without sufficient merit to warrant discussion in this opinion, R. 2:11-3(e)(1)(D), and we affirm substantially for the reasons expressed by the Parole Board in its February 28, 2008, Final Decision.