February 19, 2009
RONEN SHIMONI, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically Argued February 3, 2009
Before Judges C.L. Miniman and Baxter.
Ronen Shimoni appeals from a February 28, 2008 decision of the State Parole Board (Board) that denied him parole and established a thirty-two month future eligibility term (FET). We affirm.
On February 28, 2005, Shimoni entered a plea of guilty to first-degree robbery, and was sentenced to a fourteen-year term of imprisonment, of which four years was ordered to be served without parole eligibility. The crime in question occurred on June 25, 1994. The record establishes that after committing the robbery, Shimoni left the country, traveling to both Israel and then to Canada. Not until October 23, 2003, was Shimoni arrested in Canada on the New Jersey fugitive warrant. He was extradited to New Jersey in February 2005.
Shimoni became eligible for parole for the first time on October 14, 2007. After conducting a parole hearing on September 26, 2007, a two-member Board panel concluded that "a substantial likelihood exists that [Shimoni] would commit a new crime if released on parole at this time." The panel's determination was based upon three factors. The first was "insufficient problem resolution." In support of that factor, the Board pointed to a substance abuse problem that Shimoni had not sufficiently addressed, as well as "other," next to which the Board wrote "s[ubject] claims robbery occurred b/c he had lost his money gambling ($15,000)."
The second factor the Board identified as justifying the denial of parole was Shimoni's score of "22" on a LSI-R risk assessment evaluation. The third factor was "OTHER," next to which the Board wrote "Pros[ecutor] obj[ects]/offense com't in '94, sentenced 4/05. S[ubject] extradited from Canada."
The Board found the existence of five mitigating factors, noting that Shimoni has no prior criminal record, has been infraction-free, has participated in institutional programs, has received average to above-average institutional reports and has attempted to enroll in programs but was not admitted.
The panel denied Shimoni parole and established a thirty-six month FET. Shimoni appealed that decision to the full Board, which on February 28, 2008, affirmed the denial of parole but reduced the FET to thirty-two months.
On appeal, Shimoni maintains the Board's decision must be reversed because it is not supported by substantial credible evidence in the record that demonstrates there is a substantial likelihood that Shimoni would commit a further crime if released on parole.
Our scope of review is a narrow one, and we review Shimoni'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 Shimoni's contentions in light of our standard of review. We are satisfied the record amply supports the Board's conclusion that Shimoni has demonstrated insufficient problem resolution, namely a failure to sufficiently address his substance abuse and gambling problems. Specifically, at his September 26, 2007 panel hearing, Shimoni testified that he robbed the victim on the night in question because in a single night of gambling in Atlantic City he lost the entire $15,000 he had brought with him. In addition, Shimoni acknowledged during the panel interview that on the night of the robbery, he had been drinking alcohol, and that alcohol had, at least in the past, been a "real problem" for him.
The record demonstrates that other than completing an Alcoholics Anonymous program and a one-week Addictions Education course in prison, he has not pursued any additional substance abuse counseling or treatment, either before or during his incarceration. Nor has Shimoni ever received treatment for his gambling problem. Thus, the Board's conclusion that Shimoni has failed to sufficiently address his substance abuse and gambling problems, both of which by his own admission played a role in the robbery, is supported by substantial and credible evidence in the record.
As to the second factor, the psychologist who prepared the LSI-R risk assessment report explained that the score Shimoni received, "22," puts him at "moderate" risk to re-offend. Shimoni has presented nothing to refute that opinion other than a study conducted for the Pennsylvania Board of Probation and Parole, concluding that the use of the LSI-R test in "Pennsylvania institutional settings" has shown "problematic reliability." The Pennsylvania study recommended that the LSI-R instrument not be used as a method of assessing risk at the time of a parole interview. We decline to consider the Pennsylvania study because Shimoni could have, but did not, present it before the Board. Consequently, the Board was deprived of the opportunity to address the Pennsylvania findings. Absent exceptions not pertinent here, facts not presented to the original factfinder will not be considered by us on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
Finally, Shimoni challenges the letter submitted by the Ocean County Prosecutor's office asserting that Shimoni was a fugitive for nearly a decade following the commission of the robbery and that he had to be extradited from Canada in order to be prosecuted. The record amply supports those contentions and the Board appropriately considered that factor in denying parole.
In addition to his challenge of the three factors the Board relied on when denying him parole, Shimoni also contends that the Board failed to take into consideration his immigration status and the likelihood that he will be deported to Israel following his release from prison. We agree with the Board that Shimoni's likely deportation is irrelevant to the Board's determination of Shimoni's suitability for parole. As the Board correctly argues, "Under Shimoni's strained logic, any inmate who has an immigration detainer and is parole eligible, regardless of the amount of time they have left to serve on their sentence or of any other factors, should be granted parole. That is not what the parole statutes dictate or require." We agree that Shimoni's assertions regarding his immigration status are meritless.
Consequently, the record, when viewed as a whole, demonstrates that Shimoni has made little effort to address the two factors that he himself pointed to as causing him to commit the violent crime in question, namely his gambling and substance abuse problems. His flight from the United States to avoid apprehension and prosecution, when combined with his gambling and substance abuse problems, and his score on the risk assessment profile, paint a picture of a person who, as the Board concluded, presents "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).*fn1 We thus affirm the denial of parole.
We also conclude that the imposition of a thirty-two month FET was appropriate. The presumptive parole eligibility term for an inmate sentenced for robbery is twenty-three months. N.J.A.C. 10A:71-3.21(a)(3). This term may be increased or decreased by nine months based on the severity of the crime, the prior criminal record or other characteristics that justify an adjustment. N.J.A.C. 10A:71-3.21(c). We are satisfied that the record amply supports the Board's establishment of a thirty-two month FET. The Board may, when determining the length of the FET, consider the same factors already utilized in deciding whether the inmate is suitable for parole. N.J.A.C. 10A:71-3.21(d).