May 3, 2010
MICHAEL EHUD DANIEL, A/K/A MICHAEL MCDANIELS, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 March 17, 2010
Before Judges Axelrad and Espinosa.
Defendant appeals from a final agency decision of the New Jersey State Parole Board denying him parole following his third review and imposing a twenty-month future eligibility term (FET).*fn1 We affirm.
Defendant was sentenced on August 9, 2001 to a ten year sentence with a minimum period of parole ineligibility of four years for two convictions of second-degree robbery, N.J.S.A. 2C:15-1. The robberies were committed just over two months apart at the same convenience store, while defendant was on probation for a prior offense. His criminal history included two juvenile adjudications and three adult convictions, two for possession of a controlled dangerous substance and one for aggravated assault.
Since his incarceration, defendant has had forty-one institutional infractions, including nineteen "asterisk" offenses. Three of these infractions were committed during the period between his second and third parole reviews, (June 2006 to June 2008). Two of those offenses were "asterisk" offenses, "offering staff a bribe" and "assaulting any person."
When defendant became eligible for parole for the third time, the hearing officer referred the matter to a Parole Board panel. Parole was denied and a twenty-month FET established based upon the panel's determination that there was a reasonable expectation that defendant would violate conditions of parole if released on parole. The panel acknowledged that defendant had participated in institutional programs, including programs specific to behavior. However, the panel found the following reasons for denial of parole: extensive and/or repetitive prior criminal record; prior criminal record noted; nature of criminal record increasingly more serious; presently incarcerated for multi-crime convictions; prior opportunities on probation and parole failed to deter criminal behavior; prior violation of probation; prior incarceration(s) did not deter behavior; institutional infractions; institutional infractions since last panel hearing were numerous/persistent/serious in nature resulting in loss of commutation time and administrative segregation, with the last infraction on May 7, 2008. The panel also noted that defendant had "insufficient problem resolution," i.e., lack of insight into criminal behavior, minimized his conduct, had not sufficiently addressed his substance abuse problem and believed that he was set up by officers for both his crimes and his infractions. The panel stated that these factors were demonstrated in the panel interview, documentation in the case file and in confidential materials. Defendant appealed the panel's decision to the full Parole Board (the Board). The Board affirmed that decision and this appeal followed. We affirm, essentially for the reasons set forth in the Parole Board's letter decision of November 3, 2008.
We have considered defendant's contentions in light of the record and are satisfied that none of them is of sufficient merit to warrant extended discussion in a written decision. R. 2:11-3(e)(1)(D) and (E). We add only the following comments.
Our review of the Board's decision is limited. The Parole Board's decisions are highly "individualized discretionary appraisals." Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)). The standard of review applicable to other administrative agency decisions applies to our review. Trantino v. N.J. State Parole Bd., 154 N.J. 19, 24-25 (1998) (Trantino IV); In re Hawley Parole Application, 98 N.J. 108, 112 (1984). Parole Board decisions should not be reversed by a court unless found to be arbitrary or an abuse of discretion. Trantino IV, supra, 154 N.J. at 25; Monks v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971); State v. Lavelle, 54 N.J. 315, 322 (1969); Pazden v. N.J. State Parole Bd., 374 N.J. Super. 356, 366 (App. Div. 2005).
The standard applicable to the parole determination here is contained in N.J.S.A. 30:4-123.53(a), which provides that the inmate shall be released on parole unless by a preponderance of the evidence . . . there is a reasonable expectation that the inmate will violate the conditions of parole . . . if released on parole at that time.
In applying these principles to the record here, we conclude that the Board did not abuse its discretion in denying appellant parole. The Board considered all relevant material facts as enumerated in N.J.A.C. 10A:71-3.11. The evidence before the Board included three infractions, including two "asterisk" offenses that had been committed since the last hearing as well as a substantial history of infractions.