On appeal from the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 5, 2009
Before Judges Fisher and Sapp-Peterson.
In this pro se appeal, Miguel Torres appeals from a New Jersey State Parole Board (Board) decision that denied him parole and imposed a twenty-month future eligibility term (FET). We affirm.
Torres is currently serving concurrent five-year sentences for two violations of probation (VOP) in connection with convictions under two Passaic County indictments. Under Indictment No. 04-04-0461, he was convicted of third-degree Conspiracy, N.J.S.A. 2C:5-2 and 2C:21-2.1(a) (Count One), and third-degree False Documents, N.J.S.A. 2C:21.2.1(a) and 2C:2-6 (Count Three). Under Indictment No. 04-07-0993, Torres was convicted of third-degree Sale of Simulated Documents, N.J.S.A. 2C:21-2.1(c) and 2C:2-6 (Count Three). He is also serving another five-year custodial sentence, concurrent with the two VOPs, arising out of his conviction under Passaic County Indictment No. 06-07-0904, Possession of Devices Used For Making Simulated Devices, N.J.S.A. 2C:21-2.1(b) (Count Two).
On January 3, 2008, a two-member panel (Panel) of the Board considered Torres' case and denied him parole. The Panel established a twenty-month FET. In reaching its decision, the Panel considered: (1) Torres' prior criminal record; (2) the fact that his criminal record reflected offenses that were increasingly more serious; (3) his incarceration at that time stemmed from multiple convictions for indictable offenses; (4) his previously failed opportunities at probation; (5) his most recent opportunity at probation had been revoked due to unpaid fines; (6) a finding of insufficient problem resolution, including a lack of insight into his criminal behavior and a minimization of his conduct, as evidenced by his continued promoting and selling of false documents; and (7) his commission of a new offense while on bail. The Panel also considered mitigating factors and noted that while incarcerated, Torres had been infraction-free, was participating in institutional programs, attempted to enroll in programs, and had average to above average institutional reports.
Torres sought reconsideration of the Panel's decision, a request the Panel denied on June 5, 2008. He appealed the Panel's decision to the full Board. In a written decision dated November 3, 2008, the Board affirmed the Panel's decision, finding that the Panel appropriately considered the "aggregate of information pursuant to N.J.A.C. 10A:71-3.11 and fully documented and supported its decision for denying parole pursuant to N.J.A.C. 10A:71-3.18(f)." The Board also concluded that the "Panel's decision is based upon a determination that preponderance of the evidence indicates that there is a reasonable expectation that [Torres] would violate the conditions of parole if released on parole at this time." The present appeal ensued.
Torres' brief does not comply with Rule 2:6-2(a)(5), which requires that an appellant's argument "be divided under appropriate point headings, distinctively printed or typed, into as many parts as there are points to be argued." Nonetheless, as best we can discern, he challenges whether the Board followed the law in reaching its decision. Torres contends (1) the decision was not supported by substantial, credible evidence in the record and could not have been reached had the Board appropriately considered relevant factors, and (2) the Board exercised its authority arbitrarily or capriciously.
We apply the same standard to parole decisions as to other agency determinations. Trantino v. N.J. State Parole Bd., 154 N.J. 19, 25 (1998) (Trantino IV). Such decisions "should not be reversed by a court unless found to be arbitrary . . . or an abuse of discretion." Ibid. The Board's decisions regarding parole are highly individualized, and the Board has significant discretionary power in making its release decision. Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (Trantino VI). In deciding whether the Board's decision was arbitrary and capricious, the parole denial must be examined against a three-part standard. Trantino IV, supra, 154 N.J. at 24. First, we must determine whether the agency's action violated express or implied legislative policy. Ibid. Secondly, we must assess whether the record contains substantial evidence to support the agency's decision. Ibid. Finally, we must evaluate whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not have been reasonably made. Ibid. In this case, the Board's decision was in accord with applicable law and legislative policies and was supported by substantial evidence.
Torres' disregard for the law has been demonstrated by his prior criminal record, and prior probation and incarceration have not deterred him from engaging in further criminal activity. He is presently serving a sentence for more than one crime. His claim that the Board should essentially be precluded from considering his prior criminal record and violations of probation is without merit. These are factors that are relevant in any consideration of the likelihood that he will respond favorably to parole. See N.J.A.C. 10:71-3.11(B). Likewise, neither his immigration status nor the fact that he has two young children is justification for granting parole when weighed against the other factors the Board considered. The record clearly contained substantial evidence to support the Board's decision to deny parole and impose a twenty-month FET.
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