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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...