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Galvez v. New Jersey State Parole Board

March 26, 2010

FERMIN GALVEZ, APPELLANT,
v.
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.



On appeal from a Final Decision of the New Jersey State Parole Board.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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


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