April 27, 2010
GISNER MYSTAL, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 April 14, 2010
Before Judges Graves and J. N. Harris.
This is an appeal by a state prison inmate, Gisner Mystal, lodged at East Jersey State Prison, from a final administrative decision of the State Parole Board (Board) denying him parole and establishing a thirty-six month future eligibility term.
After a review of the Board's determination, we affirm.
In February 1996, at the age of fifty-two, Mystal was convicted by a jury of one count of aggravated sexual assault, one count of aggravated sexual contact, two counts of endangering the welfare of a child, and one count of sexual assault. Although he did not have a prior criminal history, Mystal was initially sentenced to an aggregate term of thirty- five years incarceration with seventeen and one-half years of parole ineligibility. Although the mechanism for the subsequent change is not explained in the record, in 1999 Mystal's sentence was reduced to twenty-five years incarceration with twelve and one-half years of parole ineligibility.
On July 31, 2008, the parole panel that initially denied parole determined that there was a substantial likelihood that Mystal would commit a new crime if he were released on parole.
It relied upon the following factors in reaching its conclusion:
(1) Mystal was serving a sentence for multiple convictions and
(2) he had insufficient problem resolution, specifically, lack of insight into criminal behavior, denial of crime, and minimization of his conduct.
In affirming the parole panel's decision, the 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 substantial likelihood that you would commit a crime if released on parole at this time.
Accordingly, the full Board has elected to affirm the Adult Panel's decision to deny parole and establish a thirty-six-month future parole eligibility term. You will be scheduled for a subsequent parole release hearing when it is appropriate.
On appeal, Mystal presents the following argument for our consideration:
THE PAROLE BOARD DETERMINATION SHOULD BE OVERTURNED BECAUSE THE RECORD DOES NOT SUPPORT A FINDING THAT IF RELEASED, THE APPELLANT WOULD COMMIT ANOTHER CRIME.
We conclude from our review of the record that the argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). The Board's decision sensibly considered all relevant factors, correctly applied the governing standard, and is rationally supported by sufficient credible evidence in the record. "Administrative actions, such as parole decisions, must be upheld where the findings could reasonably have been reached on the credible evidence in the record." McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002). "The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the [party] challenging the administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006) (citing McGowan, supra, 347 N.J. Super. at 563). Applying this standard, we perceive no principled basis for disturbing the Board's determination.
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