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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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