January 19, 2010
FABIO ABREU, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 January 5, 2010
Before Judges Grall and LeWinn.
Fabio Abreu appeals from a final decision of the New Jersey State Parole Board denying parole and establishing a future parole eligibility term of thirty-six months. Because the Board's decision "is supported by sufficient credible evidence on the record as a whole" and consistent with the governing legal standards, we affirm. R. 2:11-3(e)(1)(D).
Abreu is confined at East Jersey State Prison in Rahway and is serving a thirty-year sentence with a twelve-year term of parole ineligibility for aggravated manslaughter. The evidence considered by the jury established that the victim was stabbed and killed during a fight that took place after Abreu and his cousin left a bar in Newark.
The crime was committed in 1993, while Abreu was serving a term of probation for a prior conviction based on unlawful possession of a weapon. Abreu's probation officer was among those who provided information for the adult presentence report considered at the time sentence was imposed. According to that officer, Abreu's adjustment on probation was poor, and she had commenced proceedings to revoke his probation for failure to report before she was aware of the pending homicide charge.
Abreu first became eligible for parole in 2005. He was denied release at that time. Between 2005 and his second parole eligibility date in 2008, Abreu was found guilty of two disciplinary infractions - one for possession of contraband on June 27, 2006 and one for fighting on December 19, 2005. In addition, Abreu had completed programs entitled "Anger Management," "Behavioral Modification," "American" and "Zero Tolerance."
Pursuant to N.J.A.C. 10A:71-3.7, a pre-parole report detailing Abreu's criminal record, recent disciplinary record and program participation was prepared. Because Abreu is serving a sentence for aggravated manslaughter, referral to a two-member panel of the Board was required by N.J.A.C. 10A:71-3.15(b). That report includes a summary of Abreu's criminal record and reflects both the repetitive and increasingly serious nature of the crimes and the fact that Abreu committed the aggravated manslaughter while he was on probation. It also indicates that Abreu must be surrendered to the federal government for deportation upon release.
Because Abreu is incarcerated for a crime he committed in 1993, he is entitled to parole unless a "preponderance of the evidence" indicates that there is "a substantial likelihood that [Abreu] will commit a crime under the laws of the State of New Jersey if released on parole." N.J.S.A. 30:4-123.53(a) (as adopted by L. 1979, c. 441, § 9 and effective until amended by L. 1997, c. 213, § 1 (effective Aug. 18, 1997)); N.J.A.C. 10A:71-3.10(a). Under that standard, Abreu cannot be denied parole on the ground that the portion of the sentence served was not sufficiently punitive or because Abreu is likely to violate conditions of parole; the relevant question is whether there is a sufficient likelihood of recidivism upon release. See Trantino v. N.J. State Parole Bd., 154 N.J. 19, 31 (1998) (Trantino IV); cf. N.J.S.A. 30:4-123.53(a) (as amended by L. 1997, c. 213, § 1 (effective Aug. 18, 1997)) (defining the standard for release for those convicted of crimes after August 18, 1997 with reference to cooperation in rehabilitation and likely violation of parole conditions); N.J.A.C. 10A:71-3.10(b)(same). The factors the panel must consider in making its determination are set forth in N.J.A.C. 10A:71-3.11.
The two-member panel interviewed Abreu and reviewed the hearing officer's pre-parole report in light of the pertinent factors and the governing parole standard. N.J.A.C. 10A:71-3.11. In mitigation, the panel noted that Abreu's criminal record was not extensive and recognized his participation in programs while confined and the restoration of commutation credits he had lost through infractions. The panel also found, however, several factors favoring the denial of parole: a criminal record that was repetitive - two convictions involving possession of a weapon; a prior record reflecting increasingly serious crimes - unlawful possession of a weapon followed by a homicide by stabbing; commission of this crime while on probation; institutional infractions - one involving fighting since his last parole hearing; and insufficient problem resolution reflected by lack of insight into his criminal behavior and an unaddressed substance abuse problem revealed during his interview and in the pre-parole report.
The panel suggested substance abuse counseling and behavior modification and imposed a future parole eligibility term of thirty-six months. That thirty-six-month term is consistent with the relevant regulation. Pursuant to N.J.A.C. 10A:71-3.21(a)(1), the presumptive future parole eligibility term for an inmate serving a sentence for manslaughter is twenty-seven months, and a two-member panel may increase or decrease the term by nine months when "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) (emphasis added).
Abreu filed an administrative appeal to the full Board. He contended there was insufficient evidence to support the panel's determination that there was a substantial likelihood that he would commit another crime if paroled and argued that the panel exceeded its authority by imposing a thirty-six month future parole eligibility term. In addition, Abreu claimed that the panel overlooked his participation in "Zero Tolerance, Behavior Modification and Anger Management Programs" and discriminated against him by not paroling him so that he could be deported to his country of origin, the Dominican Republic.
The Board reviewed the record in light of Abreu's arguments. Identifying the evidence upon which the panel relied and recognizing that deportation is not a factor relevant to parole enumerated in N.J.A.C. 10A:71-3.11, the Board concluded that there was adequate support for the panel's determination of a "substantial likelihood" that Abreu would commit a crime if released. On that ground, the Board adopted the panel's decision.
On appeal, Abreu reiterates the arguments he presented to the Board. He also contends that there is no evidence to support the Board's finding that he has a continuing substance abuse problem and suggests that he has a right to be released to federal authorities and deported. Reversal of the Board's decision is not warranted on the basis of these claims.
Parole determinations require "highly 'individualized discretionary appraisals,'" Trantino IV, supra, 154 N.J. at 25 (citations omitted). This court's review of a decision rendered by the Board is limited to determining whether the Board exercised its power arbitrarily or capriciously. Trantino v. N.J. State Parole Bd., 166 N.J. 113, 172-73 (2001) (Trantino VI); N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547- 48 (App. Div.), certif. denied, 111 N.J. 649 (1988). In conducting that review, we must consider:
(1) whether the agency's action violates express or implied legislative policies, i.e., did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors. [Trantino IV, supra, 154 N.J. at 24.]
Applying those standards, there is nothing that would permit reversal of the Board's determinations. As noted above, pending deportation is not a factor identified in N.J.A.C. 10A:71-3.11 and the duration of the future parole eligibility term imposed is authorized by N.J.A.C. 10A:71-3.21. While we agree that there is little evidence to support the conclusion that Abreu has an unaddressed substance abuse problem and it is clear that Abreu may not be denied parole simply because he was convicted of a serious crime, the record "as a whole" supports the ultimate finding of a "substantial likelihood" that Abreu will commit a crime if released. See Trantino IV, supra, 154 N.J. at 24 (quoting Cestari, supra, 224 N.J. Super. at 547). Abreu has been found guilty of an institutional infraction based upon his involvement in a fight in prison between his first and second parole hearings, despite his prior participation in anger management and behavioral modification programs, and he committed aggravated manslaughter with a weapon while on probation for a less serious crime involving possession of a weapon. These facts, considered together, provide sufficient support for denial of parole on the ground that his release without further rehabilitation would pose a substantial likelihood of recidivism.
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