April 20, 2009
FRANK J. ANDERSON, JR., APPELLANT,
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.
On appeal from a Final Agency Decision of the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 demonstrate that it was unreasonable. Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div. 1993), certif. denied, 135 N.J. 469 (1994).
The standard governing parole is that the "inmate shall be released on parole . . . unless . . . by a preponderance of the evidence . . . there is reasonable expectation that the inmate will violate conditions of parole . . . if released on parole at that time." N.J.S.A. 30:4-123.53(a). N.J.A.C. 10A:71-3.11(b) contains a non-exhaustive list of factors that the Board may consider in determining whether an inmate should be released on parole. The Board must consider among other factors: the facts and circumstances of the underlying offense; aggravating/mitigating factors surrounding the offense; participation in institutional programs; mental or emotional health; statements by institutional staff, with supporting documentation that there is a substantial likelihood that the inmate will commit a crime if released on parole; and statements by the inmate reflecting on whether there is a substantial likelihood that he will commit a crime if released on parole.
With these principles of law in mind, we are satisfied that the Board appropriately considered all of the relevant material factors in appellant's case as just enumerated in denying parole and setting a thirty-six month FET. Appellant's prior criminal record, his present incarceration on a multi-crime conviction, his insufficient problem resolution with a lack of insight into his criminal behavior, along with a denial of the crime and the failure to sufficiently address his alcohol problem as documented all support denying his parole at this time and setting the thirty-six month FET.
More specifically, with regard to appellant's varying versions regarding the rape, he added another version before the panel of the Board when he claimed he was out drinking, was intoxicated and was walking home alone from a bar when he came upon the victim sitting on her front stoop. She purportedly invited him in for a beer and they had consensual sex. He woke up to her pointing a gun at him and telling him to leave. This additional version of events again demonstrates that appellant lacks any insight to his criminal behavior, given the violent nature of the crimes committed.
Furthermore, he attributes his current incarceration and past criminal activity to alcohol addiction. Nonetheless, he has done little while incarcerated to address this addiction. He has not undergone counseling nor undertaken any programs, except Alcoholic Anonymous (AA) meetings, stopping his participation after attending several meetings.
With regard to any mitigating evidence, the Board considered all applicable mitigation factors including his program participation, his institutional adjustment, his lack of infractions while incarcerated, his parole plans, and educational, employment and family history.
Appellant claims that he was not actually adjudicated guilty of any crime in Georgia and his other offenses were municipal convictions which should minimize his prior criminal record. Georgia apparently deemed him a first-time offender and admitted him into a diversionary type of program similar to our own pre-trial intervention (PTI) where he was required to report for a three-year period. Municipal court convictions are permitted to be considered with respect to a prior offense history under N.J.A.C. 10A:71-3.11(b)4.
Appellant criticizes the panel members questioning him about his crimes. In particular, he considers the passing characterization of him as the "local drunk" and as a drug dealer to be improper. The "local drunk" reference was only used in an attempt to understand the dubious versions of the events recounted by him and why the victim, who did not know him, would have invited him into her home. Furthermore, the panel did not accuse appellant of being a drug dealer. He was merely asked if he was also a dealer in light of his conviction for possession of CDS and drug paraphernalia. The hypotheticals used by the panel were an attempt to solicit information from him in light of the facts and circumstances of his crimes and his denial of them. The questions asked were not improper and did not violate any code of conduct.
When a panel denies parole to an inmate serving a sentence for aggravated sexual assault, the standard FET for that offense is twenty-seven months. Pursuant to N.J.A.C. 10A:71-3.21(c) a panel may increase or decrease the standard FET up to nine months when the characteristics of the inmate warrant such treatment. The panel increased the FET by nine months. In affirming, the Board concluded that "based on appellant's demonstrated lack of insight and refusal to address his alcohol addiction, he has made no progress towards overcoming substantial likelihood that he will commit another crime if released on parole." We are satisfied that the Board's determination fixing the thirty-six month FET is well-grounded and within the broad discretion for decision-making that the Board is legislatively charged with exercising. The decision was neither arbitrary nor capricious and was clearly supported by the record. We discern no basis to disturb the Board's determination.