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Anderson v. New Jersey State Parole Board

April 20, 2009


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

Per curiam.


Submitted March 25, 2009

Before Judges Payne and Newman.

Appellant Frank Anderson appeals from the Final Decision of the State Parole Board denying him parole and imposing a thirty-six month future eligibility term (FET). We affirm.

On July 30, 1995, appellant broke into an apartment in Bayonne and sexually assaulted the occupant of that dwelling while holding a knife to her throat. She was eventually able to distract appellant, retrieve a pellet gun, point it at him, and tell him to get out of the house. She contacted Bayonne Police. Because appellant had left without his clothing, his wallet had been left behind and he was located by identification inside the wallet.

At first, appellant claimed that he met M.O. at Slim's Café, that he went home with her, was having sex with her, and at some point she got a gun and pointed it at him. He later changed his version of what happened after being re-advised of his Miranda*fn1 rights and provided a voluntary statement. He admitted that he entered M.O.'s apartment, took a knife to her and forced her to have sex with him before he fled after she pointed the gun at him.

Tried by a jury, appellant was found guilty of one count each of aggravated sexual assault, sexual assault, aggravated criminal sexual assault, criminal sexual contact, possession of a weapon for an unlawful purpose and unlawful possession of a weapon. On February 13, 1998, appellant was sentenced to an aggregate term of twenty years imprisonment with a ten-year period of parole ineligibility.

Appellant has a prior adult criminal history which consists of a felony conviction, two disorderly persons convictions and one conditional discharge.

A two-member panel of the Parole Board considered appellant's case on April 10, 2007, denying him parole and establishing a thirty-six month FET. The panel based its decision on appellant's prior criminal record; the fact he is incarcerated for a multi-crime conviction; insufficient problem resolution, more particularly, a lack of insight into his criminal behavior; denial of the crime; and the failure to sufficiently address his alcohol problem. The panel noted that he had a minimal criminal record, was infraction free while incarcerated, had average to above average institutional reports, and participated in vocational programs.

The full Parole Board (the Board) considered appellant's appeal, affirming the denial of parole and the imposition of a thirty-six month FET. In so doing, the Board was satisfied that appellant poses a substantial risk of reoffense were he to be released.

On appeal, appellant contends that the Board failed to consider material facts and did not establish by a preponderance of the evidence that he poses a substantial likelihood of future criminal conduct. He maintains that it was inconsistent for the Board to consider that he had a minimal criminal record and at the same time rely upon it as a reason for denial. He also argues that it was erroneous to consider a lack of insight into his criminal behavior because he asserts that he is innocent and denies that a crime was committed. He argues that it is not possible to have a lack of insight into criminal behavior when he holds to being innocent of any criminal charge. He points out that a multi-crime conviction was really a part of a single criminal event and should not be used as a reason for denial. He also contends that the issue of his alcohol problem not being sufficiently addressed should not be considered because he was not recommended for counseling for alcohol when he was initially interviewed. He points out that he has been substance free during the time of his incarceration.

Appellant also contends that the tone and manner in which the panel asked its questions, the panel's description of him as "the local drunk" and its other personal attacks violated the panel's professional code of conduct. As a consequence, he claims that he did not receive a fair parole hearing.

Our scope of review is limited. The Parole Board has broad discretion in its decision-making process and in predicting an inmate's future behavior. Puchalski v. New Jersey State Parole Bd., 104 N.J. Super. 294, 300 (App. Div.), aff'd, 55 N.J. 113 (1969). Because this parole release process is subjective, it is recognized that such discretion is necessary. Ibid. Therefore, the Board's decisions are considered highly "individualized discretionary appraisals." Trantino v. New Jersey State Parole Bd., 166 N.J. 113, 173 (2001). The burden is on the party challenging the Board's decision to ...

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