February 11, 2009
TRACY H. GEE, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 December 1, 2008
Before Judges Sapp-Peterson and Alvarez.
Tracy H. Gee is an inmate incarcerated at South Woods State Prison in Bridgeton. He appeals from the final administrative decision of the Parole Board (Board) affirming the three-member Board Panel (panel) determination denying parole and establishing a 120-month future parole eligibility term (FET). We affirm.
Gee's incarceration arose out of his 2002 conviction for first-degree aggravated sexual assault and related charges stemming from his sexual abuse of his girlfriend's daughter. Prior to sentencing, he underwent an evaluation at the Adult Diagnostic and Treatment Center (ADTC) to determine whether his sentence fell within the purview of the Sex Offender Act (SOA), N.J.S.A. 2C:47-1 to -10. Although Gee was previously accused and adjudicated a delinquent in connection with sexual offenses committed as a juvenile and also indicted and convicted of criminal sexual contact in 1989, the ADTC evaluator determined that Gee's offenses did not fall under the purview of the SOA. He was sentenced to an aggregate nineteen-year custodial term with a mandatory minimum seven-year period of parole ineligibility and community supervision for life.
On October 29, 2006, a psychological evaluation conducted on Gee reported inconsistencies between Gee's version of his past criminal history and drug usage and the records maintained by the Department of Corrections (DOC). The report concluded that he was a moderate risk for recidivism. Four months later, on February 16, 2007, a two-member panel denied Gee parole. The factors the two-member panel found in reaching its decision that there was a substantial likelihood that Gee would commit further criminal offenses if paroled included: (1) Gee's prior criminal history, (2) his previous failures on parole, (3) his record of institutional infractions, (4) evidence of insufficient problem resolution, (5) the risk assessment evaluation, and (6) the fact that he was incarcerated for the commission of multiple crimes. The two-member panel referred the matter to a three-member panel to establish an FET.
Before reaching its decision, the three-member panel afforded Gee an opportunity to submit a written Letter of Mitigation for its consideration. Gee submitted such a letter on March 8, 2007. He urged that the two-member panel failed to consider as mitigating factors, his "exceptional institutional adjustment," his participation in conflict resolution anger management class, and his willingness to participate in outpatient counseling. He also indicated that he had a stable family relationship.
On May 9, 2007, the three-member panel established an FET of 120 months and, on July 11, 2007, issued a twenty-two page written decision detailing the reasons for its decision. A subsequent amended decision detailed Gee's extensive prior record, drug usage, and reviewed, in detail, his characterizations of his criminal conduct before the two-member panel. The panel concluded that his criminal offense record was extensive and that prior incarcerations had failed to deter him from engaging in further criminal activity. The panel also noted that Gee had been afforded four prior opportunities at juvenile parole and adult probation but was not deterred from committing additional crimes. The panel further found that Gee lacked insight into his violent behavior, had a tendency to minimize his role in the violent offenses for which he had been convicted, and observed that "after seven (7) years of incarceration, you continue to take a stance, portraying yourself as an individual who was falsely accused and unjustly convicted of your offenses." The panel noted Gee's participation in institutional programs and considered his Letter of Mitigation. Finally, the panel referenced the confidential evaluation as "play[ing] a significant role" in its determination of an FET. The panel concluded that the record before it demonstrated that Gee continued to remain "a substantial threat to public safety" and that during his seven years of incarceration he had been unable to identify the causes of [his] criminal behavior, therefore failing to develop adequate insight into [his] violent criminal personality characteristic; and failed to develop adequate and appropriate insight in recognizing issues that would return [him] to future criminal behavior.
The three-member Board panel believes that [his] stance, wherein [he] continue[s] to deny [his] present and past sexually based offenses, despite credible evidence to the contrary, including the fact that a jury of [his] peers found [him] guilty of said charges, demonstrates an obstinate attitude reflecting that [he is] either unable or unwilling to explore the underlying motivations to [his] deviant behavior; and been unable to demonstrate remorse and empathy for the victim of the crimes [he has] committed. [His] statements in regards to [his] child victim included numerous references that the assaults [he] inflicted upon her were "stories," that the assaults were something that "never happened," and that the child's accusations were "retaliatory" in nature. These statements, in absence of any true sign of remorse or compunction, are viewed as being apathetic and indifferent; and continued [his] maladaptive behavior during [his] incarceration by committing institutional infractions; and continued to minimize and deny the offenses for which [he is] presently incarcerated.
On July 26, 2007, Gee appealed the three-member panel's decision to the full Parole Board. On January 31, 2008, the Board affirmed the decision denying Gee parole and establishing an FET of 120 months. The present appeal followed.
Gee raises the following points for our consideration.
POINT I: THE DECISION TO MAX ME OUT IS ARBITRARY AND CAPRICIOUS.
POINT II: THE BOARD IGNORED INFORMATION.
POINT III: THE PANELS AND BOARD DID NOT CONSIDER REHABILITATION.
POINT IV: THE DECISION VIOLATES THE CONSTITUTION.
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. (citations omitted). 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. Gee 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. The record clearly contains substantial evidence to support the agency's decision to deny parole and impose a 120-month FET. The Board properly adhered to the post-1997 parole guidelines and calculated the 120-month FET based on appropriate factors. See N.J.A.C. 10A:71-3.11(a) and (b).
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