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Perez v. New Jersey State Parole Board

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 28, 2010

CARLOS PEREZ, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 June 15, 2010

Before Judges Fisher and Reisner.

Carlos Perez appeals from a March 25, 2009 final decision of the Parole Board affirming the Adult Panel's September 25, 2008 determination denying parole and setting a thirty-month future eligibility term (FET). We affirm.

By way of background, Perez was arrested and indicted in connection with his participation in a major drug dealing operation. When he was arrested, the police seized $350,000 and 200 kilograms of cocaine. Perez pled guilty to first degree cocaine possession with intent to distribute, N.J.S.A. 2C:35- 5a(1) and -5b(1), and first degree transporting property derived from crime, N.J.S.A. 2C:21-25a and -25c. He was sentenced to fourteen years in prison with a three-year parole bar.

On September 25, 2008, the Adult Panel recommended that he be denied parole based on his "increasingly more serious" criminal history, his moderately high risk assessment evaluation, his lack of insight into his criminal behavior and their conclusion that he appeared to minimize the seriousness of his criminal conduct. The recommendation was subsequently corrected to remove the inaccurate reference to his criminal history, because the instant offense was Perez's first criminal conviction although he has one subsequent federal conviction for drug possession. Perez filed an administrative appeal to the Parole Board.

In a written decision dated March 25, 2009, the Board determined that the Adult Panel had appropriately considered his lack of a prior criminal record, his participation in institutional programs and lack of institutional infractions.

However, the Board accepted the Panel's conclusion that Perez lacked insight into his criminal behavior and minimized his criminal conduct. The Board clarified that the Panel did not use any confidential information to reach its decision, noting that Perez was provided with "a copy of all documentation used by the Panel to determine your suitability for parole." The Board also confirmed that as a matter of law, Perez was not entitled to counsel at the parole release hearing. See Puchalski v. N.J. State Parole Bd., 104 N.J. Super. 294, 300-01 (App. Div.), aff'd, 55 N.J. 113 (1969), cert. denied, 398 U.S. 938, 90 S.Ct. 1841, 26 L. Ed 2d 270 (1970).

On this appeal, Perez presents the following points for our consideration:

POINT I: THE PANEL VIOLATED MY RIGHTS WHEN THEY ERRED IN USING INACCURATE INFORMATION AT MY DENIAL OF PAROLE ON SEPTEMBER 25, 2008, PURSUANT TO N.J.A.C. 10A:71-4(a)(1), (2)(1); AND N.J.S.A. 30:4-123.53.

A. The [Panel's] Use of Confidential Information During My FET Is a Violation of My Sixth Amendment Right to Confront My Accuser.

B. The Panel Violated My Sixth Amendment Right to Counsel, When I was Not Granted an Attorney at My Re-Hearing of My Initial Denial of Parole, so That I May Evaluate the "Confidential Information" Used to Deny Me Parole.

C. The Parole Board Failed to Abide by the 1997 Parole Act, Specifically by Not Demonstrating a Preponderance of Credible Evidence in the Record That I Will Violate Conditions of Parole if I Am Released, or That I Failed to Participate in My Rehabilitation to Support a FET.

D. The Panel's Decision of September 25, 2008 Was Incorrectly Decided.

E. The Panel Overreached Its Authority By Giving Me a FET Outside of the Established Guideline.

Our review of the Board's decision is limited to determining whether its decision was arbitrary or an abuse of discretion. Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001). The Board has broad discretion in making the parole decision, and we owe deference to the agency's expertise.

Kosmin v. N.J. State Parole Bd., 363 N.J. Super. 28, 41 (App. Div. 2003). Based on our review of the record, we find no basis to disturb the Board's decision here. Perez's appellate contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons stated in the Board's written decision.*fn1

Affirmed.


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