March 4, 2010
LEROY WRIGHT, APPELLANT,
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.
On appeal from a Final Agency Decision of the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 2, 2009
Before Judges Payne and Waugh.
On November 15, 2004, defendant, Leroy Wright, pled guilty to second-degree possession with the intent to distribute a controlled dangerous substance, N.J.S.A. 2C:35-5, and to a third-degree charge under a different indictment of possession with the intent to distribute a controlled dangerous substance within 1000 feet of a school zone, N.J.S.A. 2C:35-7. On December 2, 2005, he pled guilty to an additional third-degree school zone offense. Two of the crimes were committed while defendant was free on bail from the first charge. On December 2, defendant was sentenced to concurrent terms on all three crimes, receiving, in total, a sentence of ten years in custody with a three-year parole disqualifier.
On March 6, 2008, defendant appeared before a parole panel and was given a twenty-month future eligibility term (FET) from which he has appealed. On appeal, defendant acknowledges that, as the result of one episode while at a halfway house, he was charged with *.101 escape, *.009 misuse of or possession of electronic equipment, and.207, possession of currency in excess of $50. See N.J.A.C. 10A:4-4.1 (Prohibited Acts). Following a determination that he was guilty of those offenses, he was returned to State prison. A 365-day loss of commutation credits was imposed.
Nonetheless, defendant argues that the FET imposed on him was too lengthy in light of defendant's record and that it violated N.J.A.C. 10A:71-3.4(d) and (e). In support of his claims, defendant contends that:
(1) He received a N.J. business license while at the Halfway House, and (2) The panel did not prove there was any expectation he would violate any parole condition. (3) He was working in the community and committed no crime or violation. (4) The panel did not consider all the facts in his case, nor did they consider all [his] certificates of accomplishments while incarcerated. (5) He only received one institutional infraction while in the Halfway House. Prior to this, he never received any charges or infractions. (6) He obtained a New Jersey Drivers License and maintained gainful employment. (7) All the above showed that he would not violate his parole conditions. Defendant-Appellant further contends that he did not receive a fair hearing, with a proper evaluation of the standards, and that a 20 month future eligibility term was not appropriate. (Citations to the record omitted.)
Additionally, defendant argues that, under N.J.A.C. 10A:71-3.4(d) and (e), a *.101 charge of escape from a minimum custody facility requires an increase of his eligibility date of nine months; a.207 charge requires an increase of six months; and a *.009 charge is unlisted, so requires no increase. As a consequence defendant argues his FET should at most be fifteen months, not twenty. Defendant argues further that, having met the qualifications for admission to a half-way house, he cannot receive a twenty-month FET.
The record indicates that defendant became eligible for parole for the first time on June 10, 2008, after serving two years and nine months of his sentence. A hearing was conducted on March 6, 2008, after which the hearing officer referred defendant's case to a Parole Board panel, finding the following factors as a basis for such action: defendant's extensive prior criminal record; his current incarceration for multi-crime convictions; his commission of new offenses while on parole; his prior supervision through probation and parole had not deterred his criminal behavior; his violation of the conditions of probation and parole; his serious institutional infractions; his commission of crimes while on bail; and his return to custody following the February 24, 2008 escape charge.
On April 1, 2008, a two-member Parole Board panel considered defendant's parole status, denied parole and established a twenty-month FET. The panel found the factors noted by the hearing officer and, in addition, found that prior incarcerations(s) did not deter criminal behavior; that defendant had numerous institutional infractions that were serious in nature and resulted in loss of commutation time and administrative segregation; he lacked insight into his criminal behavior, minimized his conduct and "does not present prepared to change even at his age"; and he was returned to prison from a halfway house. As mitigating factors, the panel found that defendant participated in programs specific to his behavior; he participated in institutional programs, he had average to above average institutional reports, and he had achieved minimum custody status, although that status had not been maintained.
On that basis, the panel determined that there was a reasonable expectation that defendant would violate the conditions of parole if released, and thus further incarceration was required.
Defendant appealed to the full Parole Board, raising the seven arguments that we previously quoted. In its opinion affirming the panel's decision, the full Board addressed each of defendant's seven contentions, determining in connection with contentions 1, 3, 4, and 6 (failure to consider receipt of a business license, work in the community without criminal involvement, institutional certificates, receipt of a driver's license, and maintenance of gainful employment):
Your program participation is a matter of record, was noted on the Case Summary and was considered by the Panel. In addition, during your Panel hearing you advised the Panel that you had a good job; that you had obtained your driver's license; and that you received your N.J. business license. Therefore, the full Board determined that the Panel considered the above facts and found your contentions without merit.
With respect to contention 5 (receipt of one infraction while at the halfway house) the full Board observed:
You assert that you only received one infraction while incarcerated at the Halfway House. Contrary to your assertions, the Board Panel notes that you incurred three (3) infractions while incarcerated at Hope Hall. The record reflects that you received the following infractions on February 24, 2008: *.101 - Escape, *.009 - Misuse Or Possession of Electronic Equipment and.207 - Possession of Money or Currency ($50.00 or less)*fn1 Unless Specifically Authorized. Your institutional adjustment record is a matter of record, was noted on the Case Summary and was considered by the Panel.
With respect to defendant's contentions 2 and 7 (the panel did not prove a reasonable expectation that he would violate parole, his record demonstrated that parole would not be violated, that he was improperly evaluated, and that a twenty-month FET was inappropriate), the full Board stated:
Based upon consideration of the facts cited above, the full Board has determined that the Adult Panel has 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). Also, the full Board found that the Adult Panel's decision is based upon a determination that a preponderance of the evidence indicates that there is a reasonable expectation that you would violate the conditions of parole if released on parole at this time.
Accordingly, the panel's decision was affirmed.
In determining whether the Parole Board erred in denying parole to defendant and imposing a twenty-month FET, we must examine:
(1) whether the agency's action violates express or implied legislative policy, 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 v. N.J. State Parole Bd., 166 N.J. 113, 172 (quoting Trantino v. N.J. State Parole Bd. (Trantino IV), 154 N.J. 19, 24 (1998)), modified, 167 N.J. 619 (2001).]
Considering the first factor, we find no evidence in the record that the Parole Board's action violated express or implied legislative policies. In this regard, we note that the Board considered, as required by N.J.A.C. 10A:71-3.11, the "aggregate of all pertinent factors" including the factors listed in N.J.A.C. 10A:71-3.11b, and that it fully documented its decision as required by N.J.A.C. 10A:71-3.18(f). We note defendant's argument that the Board was limited in setting his FET by N.J.A.C. 10A:71-3.4(d) and (e), which permitted only a fifteen-month FET at maximum. However, that provision applies only to the effect of institutional infractions on parole, not other considerations relating to release. Otherwise, release of a potential parolee would be required whenever no institutional infractions were present, regardless of other factors that would render the defendant likely to violate parole, if granted. Moreover, N.J.A.C. 10A:71-3.18(g) permits a specified upward adjustment in the defendant's eligibility date if aggravating circumstances warrant it.
In considering the second and third factors set forth in Trantino, we note the essentially factual nature of the Parole Board's determination that defendant will violate parole if released. As a result, as a reviewing court, we are obliged to "determine whether [that] factual finding could reasonably have been reached on sufficient credible evidence in the whole record." State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.) (citation omitted), certif. denied, 111 N.J. 649 (1988). In this context, we must keep in mind that Parole Board decisions are highly "individualized discretionary appraisals." Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973). As a result, the Board "has broad but not unlimited discretionary powers," that "are always judicially reviewable for arbitrariness." Monks v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971).
Following our careful review of the record in this matter, together with the confidential appendix submitted by the State, we are satisfied that the information supplied to the panel and reviewed by the Parole Board provided ample credible evidence to support the Board's conclusion that a substantial risk existed that defendant would commit another crime if released. Having reviewed the Board's detailed rejoinder to defendant's arguments, we discern nothing arbitrary or capricious in the Board's decision. See Hare v. N.J. Parole Bd., 368 N.J. Super. 175, 180-81 (App. Div.), certif. denied, 180 N.J. 452 (2004).