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Colvin v. New Jersey State Parole Board


October 22, 2009


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

Per curiam.


Submitted October 6, 2009

Before Judges Gilroy and Simonelli.

Appellant Harvey Colvin appeals from the September 19, 2008 decision of the New Jersey State Parole Board (Board) denying him parole and establishing a thirty-six month future eligibility term (FET). We affirm.

On July 27, 1993, appellant caused the death of a woman pregnant with his child. After the incident, appellant placed the woman's body in the trunk of her motor vehicle; drove to a secluded, wooded area; and laid the body on the ground intending to return and bury it later. After doing so, appellant not only paid an acquaintance to assist him in concealing the body in a grave, but also engaged a second individual to provide an alibi for him. An autopsy disclosed that the victim had died from blunt injuries to her head and body. An inspection of the victim's motor vehicle disclosed deep scratches on the hood; a broken right front antenna; and blood in the trunk and on the passenger door panel, arm rest, and the right side of the vehicle's undercarriage, running from front to back.

Following the incident, appellant gave several conflicting versions of the crime that led to the woman's death. In his final version, appellant asserted that he had accidentally caused the death of the woman, stating that while they were riding in the woman's motor vehicle, they argued about the unborn child. They began to fight, causing the vehicle to swerve on the road. Although the woman wanted him to stop the motor vehicle, he failed to do so until they had reached a traffic signal. The woman jumped out of the vehicle; and when he backed up, he accidentally ran her over.

On September 30, 1993, a Cumberland County Grand Jury charged defendant under Indictment No. 93-09-01003 with first-degree purposeful murder (Count One); first-degree kidnapping (Count Two); first-degree murder while engaged in the commission of another crime (Count Three); third-degree tampering with witnesses (Count Four); and third-degree hindering his own apprehension (Count Five). On November 7, 1994, the State charged defendant under Accusation No. 94-11-01172 with third-degree hindering his own apprehension (Count One); and third-degree compounding (Count Two).

On the same day, defendant pled guilty to both counts of the Accusation. Also on November 7, 1994, defendant pled guilty to three counts under the Indictment, to wit: first-degree aggravated manslaughter as a lesser-included offense of Count One, and to Counts Four and Five.

On December 22, 1994, the trial court sentenced defendant on Count One of the Indictment to a thirty-year term of imprisonment with a fifteen-year period of parole ineligibility; and on Counts Four and Five of the Indictment, to two consecutive five-year terms of imprisonment. The court dismissed Counts Two and Three on motion of the State. On the same day, the court sentenced defendant on the convictions under the Accusation to two five-year terms of imprisonment, each sentence to run consecutive not only to each other, but also to the sentences imposed on the convictions under the Indictment. Accordingly, the court imposed an aggregate sentence of fifty years of imprisonment with a fifteen-year period of parole ineligibility.

Appellant first became eligible for parole on July 29, 2008. In anticipation of a parole hearing, appellant underwent a psychological evaluation on January 9, 2008. The doctor opined in his January 13, 2008 report that appellant possessed a "moderate" risk for recidivism.

On May 12, 2008, a two-member panel conducted a parole hearing that included an interview with appellant. After the hearing and a review of appellant's parole file, including the psychological evaluation report of January 13, 2008, the panel issued a notice of decision denying parole finding that "a substantial likelihood exists that [appellant] would commit a new crime if released on parole at this time."*fn1 The panel cited as reasons for the denial: appellant is presently incarcerated for a multi-crime conviction; appellant's institutional infractions; and appellant's insufficient problem resolution, specifically, his: lack of insight into criminal behavior; denial of the crimes; and minimization of his conduct as evidenced by his version of the crimes that significantly differs from the official version.

On June 4, 2008, appellant filed an administrative appeal, arguing that the panel's decision was arbitrary and capricious because it was not based upon evidence in the record. Appellant contended that the panel: 1) erroneously concluded his criminal record was becoming increasingly more serious, and he was incarcerated for multi-crime convictions; 2) improperly based its decision on a finding he had a history of institutional infractions leading to administrative segregation in September 2002; and 3) erroneously determined he possessed "insufficient problem resolution," because he had given a version of the crimes that significantly differs from the official version.

The panel reconsidered its decision on August 15, 2008, and issued an amended notice of decision that vacated its initial finding that appellant's criminal record was becoming increasingly more serious. The panel also found that he possessed "average to above average institutional reports." On September 19, 2008, the Board issued its final decision affirming the panel's denial of probation, and its establishment of the thirty-six month FET.

On appeal, appellant argues that "the decision to deny parole and impose a 36-month future eligibility term was arbitrary, capricious and should be reversed." We disagree.

Judicial review of parole determinations is limited to an evaluation of whether the Parole Board acted arbitrarily or abused its discretion in rendering its decisions. The actions of the Parole Board are presumed valid and reasonable. In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J. 306 (1994). Our review is also limited to a determination of whether the agency's findings could reasonably have been reached on the credible evidence in the record. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). An agency's decision can be set aside only "'if there exists in the reviewing mind a definite conviction that the determination below went so far wide of the mark that a mistake must have been made.'" N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.) (quoting 613 Corp. v. State, Div. of State Lottery, 210 N.J. Super. 485, 495 (App. Div. 1986)), certif. denied, 111 N.J. 649 (1988).

Parole Board decisions are considered "highly 'individualized discretionary appraisals.'" Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)). Consequently, "the Board 'has broad but not unlimited discretionary powers'" in reviewing an inmate's parole record and rendering a release decision. Ibid. (quoting Monks v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971)). The administrative regulations contain twenty-three factors for the Board's consideration in making parole decisions. N.J.A.C. 10A:71-3.11. From those factors, the Board must consider those "applicable in each case." McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 561 (App. Div. 2002).

We have considered appellant's argument in light of the record and applicable law. Measured by the above standard, we discern no basis to disturb the decision of the Parole Board denying parole and fixing a thirty-six month FET. We conclude that the Board's decision is founded on sufficient credible evidence in the record relevant to appellant's eligibility for parole, including the parole panel's personal interview with appellant, the panel's review of appellant's parole file, including his adult pre-sentence report that set forth circumstances pertaining to the crimes and the January 13, 2008 psychological evaluation report of appellant. R. 2:11-3(e)(1)(D). The Board's decision reflects the application of the agency's expertise to appellant's application for parole. Accordingly, we affirm the decision denying parole and fixing the thirty-six month FET.


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