September 2, 2009
GEORGE VASQUEZ, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 August 25, 2009
Before Judges Sabatino and Chambers.
George Vasquez, an inmate at the Northern State Prison, appeals from the determination of the State Parole Board (Board) denying his parole and imposing a thirty-month future eligibility term (FET). He is serving an aggregate sentence of fourteen years with seven years of parole ineligibility on his convictions for possession of a prohibited weapon, N.J.S.A. 2C:39-3(b) (third degree), and certain persons not to have weapons, N.J.S.A. 2C:39-7(b) (second degree). While he was acquitted by a jury of the related charge of terroristic threats, he was convicted of harassment, and sentenced to thirty days in the county jail on that charge.
In 2006, while imprisoned, Vasquez incurred four related institutional disciplinary infractions of escape, disruptive conduct, misuse of electronic equipment, and theft, resulting in administrative segregation and loss of commutation time.
Vasquez's prior record consists of a municipal court charge in New Jersey for receiving stolen property in 1987 and two robbery convictions in New York State in 1990. He was imprisoned and then placed on parole for the offenses committed in New York State. He has no record of parole violations.
Vasquez first became eligible for parole on October 31, 2008. Prior to that time, on May 16, 2008, he received his initial review by a hearing officer who referred the matter to the Board's Panel. The hearing officer's case summary erroneously states that Vasquez was convicted of terroristic threats and indicates that he relied on the arrest reports in weighing the serious nature of the charges. In fact, as we have already noted, Vasquez was acquitted of terroristic threats. While he was convicted of harassment, he was sentenced to thirty days in the county jail for that conviction, so he is not in state prison on that offense. The Board Panel gave the following reasons for denying parole:
Prior criminal record noted.
Nature of criminal record increasingly more serious.
Presently incarcerated for multi crime conviction.
Prior opportunity(. . .) on community supervision (. . . parole) has . . . failed to deter criminal behavior.
Prior incarceration(s) did not deter criminal behavior.
Institutional infraction(s): . . . serious in nature; loss of commutation time; . . . Administrative Segregation . . . . Last infraction: 9/16/05 - Escape. Insufficient problem(s) resolution. Specifically:  Lack of insight into criminal behavior . . . [and] Minimizes conduct . . . .
While the standard FET period for a sentence between eight and fourteen years is twenty-three months, N.J.A.C. 10A:71-3.21(a)(2), the Board Panel established a thirty-month FET for Vasquez. Vasquez asked the Board Panel to reconsider its decision, noting factual errors in the Panel's findings. The Board Panel denied Vasquez's application for reconsideration.
The full Board affirmed the decision of the Panel, finding by a preponderance of the evidence "there is a substantial likelihood that you [Vasquez] would commit a crime if released on parole at this time." It gave as reasons for denial of parole:
[P]rior criminal record noted; nature of criminal record increasingly more serious; presently incarcerated for a multi crime conviction; prior opportunity on parole failed to deter criminal behavior; prior incarceration failed to deter criminal behavior; and institutional infractions, were serious in nature, and resulted in loss of commutation time, and confinement in administrative segregation. The last institutional infraction is noted as an escape charge on September 16, 2005.
On appeal, Vasquez raises the following issues:
THE PAROLE BOARD TWO MEMBER PANEL RELIED ON INCORRECT [INFORMATION] TO JUSTIFY THE IMPOSITION OF A 30 MONTH FUTURE ELIGIBILITY TERM.
THE PAROLE BOARD DENIED VASQUEZ'S RIGHT TO PROCEDURAL DUE PROCESS AS WELL AS STATE LAW, BY DENYING HIM PAROLE BEFORE HIS PRE-PAROLE REPORTS HAD BEEN COMPLETED.
THE BOARD ABUSED [ITS] DISCRETION BY INVOKING EMPTY PHRASES TO JUSTIFY THE DENIAL OF PAROLE BASED ON EVIDENCE NOT SUPPORTED BY THE RECORD.
In Point III, Vasquez disputes the Board's findings that his criminal record was increasingly more serious, that he was incarcerated for multi-crime convictions, that his prior incarceration and parole did not deter criminal behavior, that his institutional infractions were serious, and that he "lacks insight into his criminal behavior and minimizes his conduct." He notes that while the present offenses were committed in 1996, he was not convicted until 2001 and that in the intervening years he was out on bail and employed and incurred no further charges.
When reviewing a decision by the Board, we must determine (1) whether the Board applied the correct legal standard; (2) whether the record contains substantial evidence to support the Board's findings; and (3) whether the Board "clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevent factors." Trantino v. N.J. State Parole Bd., 154 N.J. 19, 24 (1998). The Board's decision is presumed to be reasonable, and its decision will be upheld unless appellant can show that the decision was arbitrary, capricious, or unreasonable. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002). We may not substitute our decision for that of the Board, and we will not overturn the Board's decision where its "findings could reasonably have been reached on the credible evidence in the record." Ibid.
In our review, we are mindful that "Parole Board determinations are highly 'individualized discretionary appraisals,' and, therefore, Parole Board decisions should not be reversed by a court unless found to be arbitrary." Trantino v. N.J. State Parole Bd., supra, 154 N.J. at 25 (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)). "The Parole Board has broad but not unlimited discretionary powers in reviewing an inmate's record and rendering a release decision." McGowan v. N.J. State Parole Bd., supra, 347 N.J. Super. at 563. Unless the Board "went so far wide of the mark that a mistake must have been made," its decision must not be disturbed. N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.) (quoting 613 Corp. v. State of N.J., Div. of State Lottery, 210 N.J. Super. 485, 495 (App. Div. 1986)), certif. denied, 111 N.J. 649 (1988).
Since Vasquez's offenses were committed in 1996, they are governed by the standard for parole at that time, namely, that an inmate shall be released on parole unless "by a preponderance of the evidence  there is a substantial likelihood that the inmate will commit a crime under the laws of this State if released on parole at such time." L. 1979, c. 441, § 9 (current version at N.J.S.A. 30:4-123.53(a)). The administrative regulations set forth twenty-three factors to be considered by the Board when making parole decisions. N.J.A.C. 10A:71-3.11. From these twenty-three factors, the Board must consider those relevant to the inmate under consideration. McGowan v. N.J. State Parole Bd., supra, 347 N.J. Super. at 561.
In this case the Board acknowledged that erroneous information had been presented to the hearing officer and the Panel, namely, the records erroneously stated that a detainer was lodged against defendant when it was not; that he had been convicted of terroristic threats when in fact he had been acquitted of that charge; and that he was arrested on March 10 and 11, 1996, when in fact he was arrested on March 11, 1996, only. It further explained that, taking all of the corrected information into account along with all of the other information it had and applying the administrative factors, "there is a substantial likelihood that [Vasquez] would commit a crime if released on parole at this time." Given our standard of review and the deference accorded to the Board's decisions, we cannot say that its decision in denying Vasquez parole was arbitrary, capricious, or unreasonable, in light of his criminal record, serious disciplinary infractions in escaping from prison, and the mental health evaluation of Vasquez that supports the Board's decision.
However, while the underlying facts and findings by the Board meet the standard to deny parole, they do not explain why the Board imposed an extended ineligibility date. Under the general rule, Vasquez's FET would have been an additional twenty-three months. See N.J.A.C. 10A:71-3.21(a)(2). Here, the Board imposed an FET of thirty months. In order for the Board to impose the additional time, it must find that "the severity of the crime for which the inmate was denied parole and the prior criminal record or other characteristics of the inmate warrant such adjustment." N.J.A.C. 10A:71-3.21(c). We do not discern that such a finding was made here. We are unable to determine from the facts presented why the extended FET was imposed here. Although Vasquez was involved in an escape while incarcerated and incurred serious institutional infractions for that conduct, his incarceration is for the illegal possession of weapons and not other active criminal conduct; he served parole for crimes committed in New York State without any violations; and he was out on bail for the pending charges for years without any new criminal charges. We also do not understand the basis for the Board determining that Vasquez's criminal record has become increasingly more serious, since generally robbery charges would be considered more serious than possession charges.
We remand in order that the Board reconsider its imposition of the extended FET. If the Board, upon reconsideration, decides to continue the imposition of the additional six months, then it should provide an analysis, setting forth the specific facts it relies on in reaching this conclusion. The balance of the arguments in this appeal do not warrant comment. R. 2:11-3(e)(2).
Remanded. We do not retain jurisdiction.
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