March 26, 2010
FERMIN GALVEZ, APPELLANT,
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.
On appeal from a Final Decision of the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 8, 2010
Before Judges Rodríguez and Yannotti.
On June 22, 2006, Fermin Galvez (Galvez) pled guilty to one count of theft by deception, N.J.S.A. 2C:20-4; two counts of forgery, N.J.S.A. 2C:21-1(a)(2); one count of false swearing, N.J.S.A. 2C:28-2(a); and one count of obstructing the administration of the law, N.J.S.A. 2C:29-1. The court sentenced Galvez to an aggregate seven-year term of incarceration. He appeals from a final decision of the New Jersey State Parole Board (Board), which denied his second application for parole and imposed a twelve-month future parole eligibility term (FET). For the reasons that follow, we affirm.
Galvez's convictions arose from the following facts. Galvez's paramour, Alba Morales (Morales), was hospitalized on December 8, 2004. She was the owner of certain real property in Newark, New Jersey. On January 3, 2005, Galvez went to an attorney with a woman who he introduced as Morales. Galvez told the attorney that the woman was his wife. Galvez had the attorney prepare a deed changing ownership of the property from Morales to Morales and Galvez. Morales died on January 8, 2005.
Thereafter, Galvez sold the property to Miguelina Bencosme (Bencosme) and Jose Valdez. Bencosme obtained a loan in the amount of $200,658.46 to purchase the property. In November 2005, Galvez and his attorney responded to the Essex County Prosecutor's Office to be questioned about the transaction. After being informed of his Miranda*fn1 rights, Galvez made several false statements to the investigators, including the assertion that Morales had signed the deed transferring ownership of her property to Morales and Galvez.
Galvez had previously been denied parole and an eleven-month FET was established. Galvez again became eligible for parole on January 31, 2009, after serving two years and two months of his sentence. An initial hearing was held on September 4, 2008. A hearing officer referred the matter to a panel of the Board. The panel issued a decision dated September 26, 2008, denying parole and establishing a twelve-month FET. The panel found that there was a reasonable expectation that Galvez would violate conditions of parole if released at this time.
In its decision, the panel noted the following mitigating factors: Galvez was infraction free; he had participated in programs specific to behavior as well as institutional programs; and he had attempted to enroll and participate in other programs but was not admitted. The panel noted the following reasons for denying parole: Galvez has a prior criminal record; the nature of his criminal record had become increasingly more serious; he was incarcerated for a multi-crime conviction; an opportunity for probation had been terminated because Galvez committed a new offense; prior opportunities for probation failed to deter criminal behavior; and there was insufficient problem resolution, specifically a lack of insight into criminal behavior.
The panel also noted that Galvez seemed to "make up his own rules -- and... believe in them." It additionally noted that Galvez was unwilling to be forthright regarding the motives for his criminal conduct. The panel suggested that Galvez undergo an in-depth psychological evaluation prior to his next parole hearing. It also suggested that he participate in behavior modification, as well as institutional programs geared toward his criminal behavior.
Galvez filed an administrative appeal to the full Board. He alleged that panel had used inaccurate information in its decision. He claimed that the panel used confidential information in violation of his right to confront his accuser, as guaranteed by the Sixth Amendment to the United States Constitution. Galvez additionally claimed that the panel violated his Sixth Amendment rights by refusing to grant him permission to use an attorney in the parole process and applied the wrong standard for parole in rendering its decision. The Board issued a written decision dated February 25, 2009, rejecting these contentions and affirming the panel's determination. This appeal followed.
Galvez argues that: 1) the Board violated his rights by using inaccurate information when it rendered its decision to deny parole; 2) the Board erred by denying parole because it failed to establish by a preponderance of credible evidence that he would violate conditions of parole if released at this time; and 3) the Board's imposition was a second FET was erroneous because the Board did not establish that he failed to participate in his own rehabilitation.
In reviewing a final decision of the Parole Board, we consider whether: 1) the Board's action is consistent with the applicable law; 2) there is substantial credible evidence in the record as a whole to support the Board's findings; and 3) in applying the law to the facts, the Board erroneously reached a conclusion that could not have been reasonably made based on the relevant facts. Trantino v. New Jersey State Parole Bd., 154 N.J. 19, 24 (1998). We are convinced from our review of the record that the Board's decision in this matter is consistent with the governing law. We are additionally convinced that there is substantial credible evidence in the record to support the Board's decision to deny parole and establish a twelve-month FET.
We note initially that Galvez committed the offenses for which he is presently incarcerated in 2005. Therefore, the standard that governs his parole is prescribed by N.J.S.A. 30:4-123.53(a). The statute provides in pertinent part that an inmate shall be released on parole unless information produced at the hearing "indicates by a preponderance of the evidence that the inmate has failed to cooperate in his or her own rehabilitation or that there is a reasonable expectation that the inmate will violate conditions of parole... if released on parole at that time." Ibid. Here, the Board's panel found that there was a reasonable expectation that Galvez would violate the conditions of parole if released at this time. It reached that decision based on a consideration of the relevant facts under N.J.A.C. 10A:71-3.11(b). As we stated previously, the full Board upheld the panel's finding.
The record supports the Board's decision. Galvez is presently incarcerated for a multi-crime conviction. The nature of his criminal record has become more serious. Galvez had one prior conviction for criminal sexual contact, for which he was sentenced to three years of probation. The Board reasonably determined that Galvez has demonstrated insufficient problem resolution because he lacks insight into his criminal conduct and remains unwilling to be forthright about his motives for committing the offenses for which he is now incarcerated.
Galvez argues that, in its decision, the Board failed to recognize that he was infraction free and had actively taken all programs that were suggested and available. The contention is without merit. In its decision, the panel noted as mitigating factors that Galvez had not committed any disciplinary infractions, had participated in programs specific to behavior and other institutional programs and had attempted to enroll in other programs but had not been admitted. Galvez may not have committed any disciplinary infractions and he may have participated in certain institutional programs but this does not mean that he presently meets the standard for parole.
Galvez also contends that he did not violate the conditions of his probation and he has never been sentenced for any violation of those conditions. It appears from the record that Galvez was sentenced on April 1, 2005, to three years of probation. As we stated previously, one of the offenses for which Galvez is presently incarcerated is obstruction of the administration of the law. The record shows that Galvez made false statements to the investigators concerning the fraudulent deed in November of 2005, which was after he was placed on probation. Thus, the record supports the Board's finding that the opportunity for probation did not deter Galvez from further criminal conduct.
In addition, Galvez argues that the Board erred by finding that he lacks insight into his criminal behavior. Galvez claims that he has a constitutional right protecting him from self-incrimination and he cannot be required to disclose incriminating information in a treatment program. Even so, it was not improper for the Board to take note of Galvez's unwillingness to be forthright about the motives for committing the offenses in determining whether he should be paroled.