October 20, 2009
FERNANDO MORALES, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 September 23, 2009
Before Judges Graves and Lyons.
This is an appeal by Fernando Morales from the denial of parole and the imposition of a 120 month future eligibility term (FET) by the Parole Board on May 2, 2008. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.
On December 31, 1980, at 9:25 p.m., the Paterson police responded to a grocery store based on the report of a shooting at that location. Upon arrival, officers observed a male, "R.F.", lying face down on the floor by the front door of the establishment. The police noted that R.F. was bleeding, appeared unconscious, and had a revolver in his right hand.
R.F. was then transported to Barnert Memorial Hospital, where he was pronounced dead at 10:15 p.m. The cause of R.F.'s death was determined to be gunshot wounds to his right ear, right upper chest area, right shoulder area, and upper right arm.
A statement was taken from "Z.F.", the victim's daughter, who was present when her father was shot. Z.F. stated that on December 31, 1980, at approximately 9:30 p.m., she was working behind the counter in her father's store when four Hispanic males, each approximately twenty to twenty-five years of age, one of whom was later identified as Morales, entered the store. Z.F. further said that two of the males proceeded to the rear of the store and took cans of soda, while two others stayed by the front of the store. One of the men who had taken a soda then returned to the front of the store and gave R.F. $5 to pay for the soda. At this time, this same individual removed a gun from his chest area, grabbed R.F.'s wife, who was also behind the counter, and stated, "this is a hold up." R.F., who had been at the rear of the store, then came to the front of the store, at which point shots were fired. According to Z.F., all four of the males who entered the store had guns. After shooting R.F., the four males then fled the scene by car. On January 3, 1981, Morales's photograph, along with those of eight other individuals, was shown to Z.F. and to R.F.'s wife, B.F. After viewing the nine photographs, both Z.F. and B.F. positively identified Morales as one of the four men who was involved in the commission of robbery and murder of R.F. Police then obtained a warrant for Morales's arrest, and he was formally charged with murder, robbery, and possession of a weapon for an unlawful purpose.
On July 8, 1982, after a jury trial, Morales was found guilty of murder and robbery. On August 4, 1982, the sentencing court merged the robbery conviction into the murder conviction, and sentenced Morales to a term of life imprisonment, with a mandatory minimum term of twenty-five years.
On September 24, 1982, Morales pled guilty to one count of burglary in connection with a break-in at the First National Bank in Paterson. On October 13, 1982, Morales was sentenced to a concurrent term of five years in prison.
In addition to the above-described crimes, Morales's criminal history includes five arrests, which resulted in convictions for entry with intent to steal, receiving stolen goods, possession of burglar tools, and six counts of forgery. As a result of his convictions, Morales had been sentenced to three earlier separate terms of incarceration. In addition, Morales was paroled on one occasion as an adult, which he violated when he was convicted of the above-described murder.
During his years of incarceration for the murder conviction, Morales had been found guilty of committing twenty-four institutional disciplinary infractions, including a total of thirteen asterisk charges. The asterisk charges included: tampering with or blocking any locking device; making intoxicants, alcoholic beverages, or prohibited substances; misuse of authorized medication; possession or introduction of a weapon; conduct which disrupts or interferes with the security or orderly running of the correctional facility; refusal to submit to a search; use of any prohibited substances; and assaulting any person. Morales's remaining charges included three charges for refusing to obey; three charges for possession of anything not authorized for receipt or retention; two charges for failure to comply with a written rule or regulation of the correctional facility; and one charge each for being in an unauthorized area; possession of gambling equipment; and giving money or anything of value to, or accepting money or anything of value from, a member of another inmate's family or another inmate's friend.
Morales became eligible for parole for the first time on January 3, 2008, after serving approximately twenty-five years and twenty-seven days. On August 30, 2007, Morales received an initial hearing. The hearing officer referred the matter to a Board panel. On September 28, 2007, a two-member Board panel considered Morales's case, denied parole, and referred his case to a three-member panel for the establishment of an FET. The two-member panel based its decision on the following factors: prior criminal record; nature of criminal record increasingly more serious; presently incarcerated for a multi-crime conviction; current opportunity on parole revoked for commission of new offense; prior incarcerations did not deter criminal behavior; commission of institutional disciplinary infractions, which are numerous, persistent and serious in nature, and which resulted in the loss of commutation time and confinement in administrative segregation, with the most recent infraction occurring in April 2006; insufficient problem resolution, including a lack of insight into criminal behavior, denial of crime, and minimization of conduct, as demonstrated by the panel interview, documentation in the case file and confidential material/professional report; and a risk assessment evaluation. Regarding mitigating factors, the Board noted that Morales has participated in institutional programs, including programs specific to behavior, has average to above-average institutional reports, and has made attempts to enroll and participate in programs for which he is on a waiting list, namely, Narcotics Anonymous.
On January 9, 2008, a three-member Board panel considered Morales's case and established a 120 month (ten-year) FET. The three-member panel based its decision on the same factors that were relied upon by the two-member panel in denying Morales's parole. The panel detailed its reasoning in an extensive sixteen-page decision.
On April 5, 2008, Morales appealed the two-member and three-member panel decisions to the full Board. On April 30, 2008, the full Board affirmed the respective panel decisions to deny parole and establish a 120 month FET. This appeal followed.
On appeal, Morales presents the following arguments for our consideration:
POINT I I REQUEST TO SUPPLEMENT THE RECORD PER R. 2:5-5(b) AS TO AN ISSUE OF THE RESPONDENTS USE OF QUOTES IN MY FEBRUARY 21, 2008, NOTICE OF DECISION [BECAUSE] I BELIEVE . . . THAT THE RESPONDENT[ ] HAS A TRANSCRIPT THAT HAS NOT BEEN PROVIDED TO ME IN THE "ITEMS COMPRISING THE RECORD." THAT THIS ISSUE REQUIRES ADDRESS BY THE COURT, AS IT VIOLATED MY RIGHT TO HAVE ALL OF THE INFORMATION USED IN MY FET. (Not raised below).
POINT II THE PAROLE BOARD VIOLATED MY RIGHTS WHEN THEY ERRED USING INACCURATE INFORMATION AT MY DENIAL OF PAROLE.
POINT III THE PAROLE BOARD FAILED TO CONSIDER ALL OF THE MITIGATING FACTORS, AND I HAVE INSIGHT INTO MY CRIMINAL BEHAVIOR. THIS FAILURE TO REVIEW MY ENTIRE RECORD, CONSIDER ALL MITIGATING EVIDENCE, MIS-CONSTRUING MY INTERPRETATIONS OF EVENTS HAS DENIED MY "DUE PROCESS" & "EQUAL PROTECTION" RIGHTS, BY DENYING ME A FAIR, UN-ARBITRARY, AND NON-CAPRICIOUS DECISION.
POINT IV THE USE OF CONFIDENTIAL INFORMATION FOR FET IS A VIOLATION OF MY SIXTH AMENDMENT RIGHT TO CONFRONT MY ACCUSER.
POINT V THE PAROLE BOARD VIOLATED MY SIXTH AMENDMENT RIGHT TO COUNSEL WHEN I WAS NOT GRANTED COUNSEL AT MY FET SO THAT I MAY EVALUATE THE "CONFIDENTIAL MATERIAL" USED IN MY CURRENT FET.
POINT VI THE PANEL FAILED TO ABIDE BY THE 1979 PAROLE ACT, SPECIFICALLY BY NOT DEMONSTRATING A PREPONDERANCE OF CREDIBLE EVIDENCE IN THE RECORD THAT I WOULD COMMIT A CRIME WHILE ON PAROLE TO SUPPORT A FET. (Not raised below).
We find no merit in Morales's contentions.
In Hare v. New Jersey State Parole Bd., 368 N.J. Super. 175, 179-80 (App. Div.), certif. denied, 180 N.J. 452 (2004), we set forth the appropriate scope of review in such matters:
Our scope of review is limited. A reviewing court must determine whether the factual finding could reasonably have been reached on sufficient credible evidence in the whole record. Trantino v. N.J. State Parole Bd., 166 N.J. 113, 172, modified, 167 N.J. 619 (2001); N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.), certif. denied, 111 N.J. 649 (1988). Moreover, "Parole Board decisions are highly individualized discretionary appraisals," Trantino, supra, 166 N.J. at 173 (citing Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)), and should only be reversed if found to be arbitrary or capricious. Trantino, supra, 166 N.J. at 173. The Parole Board must determine by a preponderance of the evidence whether there is a substantial likelihood the inmate will commit another crime if released. Id. at 189.
The administrative regulations contain a non-exhaustive list of multiple factors the Board may consider in determining whether an inmate should be released on parole. N.J.A.C. 10A:71-3.11(b). The determination whether there is a substantial likelihood that an inmate will commit another crime if released is largely factual in nature. Trantino, supra, 166 N.J. at 172.
In Morales's first brief point, he argues that he should have been provided with a transcript of his panel hearing.
N.J.A.C. 10A:71-3.13(k) provides that a parole hearing shall be recorded by an electronic recording device. There does not appear to be anything in the rules or regulations which requires that there be a transcript prepared from that device. Rule 2:5-3(a) requires an administrative agency "which has had the verbatim record transcribed" to provide it upon request. However, there is no indication in this case that there was a transcription of the record.
Rule 2:5-3(d) provides that if an appellant is indigent and is entitled to have a transcript of the proceedings below furnished without charge for use on appeal, the court, on application, may order the transcript prepared at public expense. Given the undisputed factual record and the written decision of the panel, a transcript was not necessary. The record here indicates that, while Morales filed a motion with us to compel the transcript, it was denied without prejudice. Further, while Morales was granted permission to proceed as an indigent, he did not apply pursuant to the Rule for the transcript to be prepared at government expense. Therefore, in the absence of a requirement for a stenographic transcript of a parole hearing to be made, and in the absence of a direct application for the court to provide at the public expense the transcript, we find the absence of a transcript not to be a basis to set aside the parole board's decision. See Mastriana v. N.J. Parole Bd., 95 N.J. Super. 351, 357 (App. Div. 1967). Moreover, we note that the quotations referred to in the panel's decision are quotations of Morales himself. Morales does not dispute the accuracy of those statements. We, therefore, see no prejudice to Morales with respect to his appeal because he lacks the transcript.
Morales argues in points two, three, and six of his brief that the Board relied on inaccurate information, it overlooked mitigating evidence, and that the panel did not demonstrate by a preponderance of credible evidence in the record that he would commit a crime "while on parole to support a FET."
We disagree. The Board panel determined there was a substantial likelihood that Morales would commit a new crime if released on parole at the present time. It thoroughly considered the factors set forth in N.J.A.C. 10A:71-3.11. The panel relied upon Morales's prior extensive and escalating criminal record. It noted he violated parole in the past and that prior incarceration did not have a positive effect. The Board reviewed and weighed the numerous serious infractions incurred by Morales while he was incarcerated. It found, based on substantial credible evidence, that Morales lacked sufficient insight into his criminal behavior because he minimized his involvement in the crime to the point of almost denying criminal liability. The panel also reviewed the confidential material and professional reports submitted to it in coming to its conclusion. The panel, however, did not ignore the letter of mitigation, the work and housing reports, or the programs which Morales had attended during his years in prison. The Parole Board also considered these reasons sufficient to deny parole and establish a 120 month FET.
We have reviewed the confidential appendix submitted as part of the record by the Board. Among other things, the appendix includes psychological evaluations of Morales, some portions of which are not favorable to him.
We are satisfied that the information supplied to the panel and reviewed by the Board provided ample credible evidence to support the Board's conclusion that there is a substantial risk that Morales will commit another crime if released. We will not second-guess the Board's decision under such circumstances.
Morales also argues that his constitutional rights were violated when he was denied access to the confidential information reviewed by the panel and Board and when he was denied counsel.
In Puchalski v. New Jersey State Parole Bd., 104 N.J. Super. 294, 300 (App. Div.), aff'd, 55 N.J. 113 (1969), cert. denied, 398 U.S. 938, 90 S.Ct. 1841, 26 L.Ed. 2d 270 (1970), we held that there is no right to State-supplied counsel in connection with a Board hearing. Further, in Thompson v. New Jersey State Parole Bd., 210 N.J. Super. 107, 126 (App. Div. 1986), we reviewed the fact that the Board, by necessity, must at times utilize confidential information in making its decision. We held in that case that if "confidential materials . . . play[ ] a substantial role in producing the adverse decision [against an inmate] in a case appealed to this court, we will undertake to review the materials and determine the propriety of the decision to withhold them" from the inmate. Ibid. In that case, we found that the withheld materials did not play a substantial role. Ibid. However, in this case, the Board relied upon confidential materials and we have reviewed them. They were properly classified as confidential and appropriately withheld. Therefore, in accordance with Thompson, Morales's rights concerning confidential materials have been addressed.
As we have noted, "there is no question but that due process applies to parole eligibility decisions." Gerardo v. N.J. State Parole Bd., 221 N.J. Super. 442, 448 (App. Div. 1987). However, we have also noted that "parole is not a part of criminal prosecution and thus the full panoply of rights accorded a criminal defendant is not applicable," such as the unfettered right of confrontation. Ibid. Recognizing that the full panoply of rights accorded to a criminal defendant does not apply to an inmate at a parole hearing and, specifically, that the right to counsel does not exist at a Board hearing, we also conclude that there is no obligation on the State's part to provide an inmate with counsel for a parole eligibility hearing at the State's expense.
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