February 10, 2011
MELQUIDES TAVARES, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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: September 27, 2010
Before Judges A.A. Rodriguez and C.L. Miniman.
Inmate Melquides Tavares appeals from a final agency decision of the New Jersey State Parole Board (Board) denying him parole and establishing a thirty-six-month Future Eligibility Term (FET). Because the Board's action was neither arbitrary nor capricious, we affirm.
Tavares is incarcerated at Northern State Prison in Newark and is serving a thirty-year term with a mandatory minimum term of fifteen years on a conviction for first-degree aggravated manslaughter. On March 6, 1994, Tavares, without provocation, stabbed his estranged wife, Maxima, twice in the chest, resulting in her death.
This attack occurred at least one month after Tavares and Maxima separated. Maxima took a trip to her home in Santa Domingo, Dominican Republic, after the separation and returned on March 6, 1994. Tavares picked her up at the airport and took her to her sister's home, where Tavares had been living since the separation, for a welcome-home party.
During the party, Maxima was telling various guests about the times she had while in the Dominican Republic, which included going to discotheques, going to the beach, and drinking beer. She also stated that on one occasion she stayed out all night and did not return until nine o'clock the next morning. Maxima also had a telephone conversation with someone in the kitchen during which she described the good times she had had in her homeland. She then sat down at the kitchen table and began a similar conversation with another friend of hers.
While Maxima was in the kitchen, Tavares was seated at the table in the dining room. Tavares got up, walked into the kitchen, and picked up a serrated knife from the counter. He approached Maxima, who was still seated at the kitchen table, and stabbed her two times under the left breast.
The police were called immediately, and when they arrived, Tavares stated, "I did it, I did it, sorry," and placed his hands behind his back. He was arrested and taken to police headquarters. Maxima was taken to the hospital and pronounced dead at 6:04 p.m.
Tavares pled guilty to first-degree aggravated manslaughter and third-degree possession of a weapon for an unlawful purpose, which was merged into the manslaughter conviction for sentencing purposes. He was sentenced on January 26, 1996. On February 3, 1997, an immigration judge ordered Tavares deported to the Dominican Republic upon his release from prison. He has an immigration detainer lodged against him.
In preparation for Tavares's first Parole Eligibility Date of March 4, 2009, the Board prepared a case summary on August 4, 2008, and sought pre-parole housing, work, and special-activities reports, as well as medical records respecting Tavares. On December 4, 2008, Tavares received an initial hearing before a hearing officer, who referred the matter to a two-member Adult Panel. The hearing officer made this referral because N.J.A.C. 10A:71-3.15(b) required him to do so since Tavares had been convicted of aggravated manslaughter. He also based it on the serious nature of the offense and an unfavorable interview in which Tavares minimized his criminal conduct.
On December 23, 2008, the two-member Adult Panel considered Tavares's parole eligibility. At that time, Tavares testified that he lost control of himself because his wife attacked him with words in front of people from his workplace, causing him humiliation. He claimed that he loved his wife very much but was under a lot of stress from work. When asked why he responded so violently to mere words, he replied, "Well, at that moment at that time that my woman was attacking me too much verbally. . . . And I got up and I didn't think. And I attacked her."
At the end of the hearing, the Adult Panel found that Tavares blamed the victim for the reason he killed her. "And he needs to really start finding out what drove him to the point that he acted so violently that he took someone's life just because, in his words, which he gave several explanations, that . . . she was talking negative about him."
The Adult Panel acknowledged in its notice of decision that Tavares was infraction free, participated in programs specific to his behavior, had average to above-average institutional reports, and attempted to enroll and participate in programs, but was not admitted. The reasons for the denial were insufficient problem resolution," "[l]ack of insight into criminal behavior," and "[l]ost control/[b]lames crime on stress/[b]lames crime on victim," as demonstrated by the Adult Panel interview and the documentation in the case file. The Adult Panel established a thirty-six-month FET and suggested that Tavares participate in substance-abuse counseling, institutional programs geared toward criminal behavior, one-toone counseling, and "focus on the victim."
On December 30, 2008, Tavares appealed the denial of parole to the Full Board. He argued that the Adult Panel failed to credit him with the mitigating factors it had noted. He urged that there was no substantial likelihood that he would commit a new crime because he was "a seriously ill, 61 year old man. He has undergone two (2) major surgeries for intestinal problems." He urged that no reasonable person could believe that he was in a physical condition to commit another crime. He also urged that the thirty-six-month FET should be reconsidered.
Tavares asked to be released to his pending immigration detainer, arguing that the Adult Panel failed to consider his lack of any prior criminal history, his participation in programs, his age and physical health, and his clean institutional record. He urged that there was no evidence to indicate that there was a substantial likelihood that he would commit a new crime and that the punitive aspect of his sentence had been served. Finally, he stated that he had not blamed the victim for the crime, he was forthcoming about the details of the crime when it occurred, was remorseful, and asked forgiveness from the Adult Panel.
The Full Board responded to these concerns on May 20, 2009, explaining that the same statutory standard for review applies to parole release into the community and parole release to detainers pursuant to N.J.A.C. 10A:71-3.10(a), "which requires the Panel to determine if [there] is a substantial likelihood that you would commit a crime if released on parole at this time." The Full Board determined that the existence of a deportation agreement did not reduce the likelihood that Tavares would continue to violate the law.
The Full Board also explained that the Adult Panel had considered the medical issues raised by Tavares, but the medical report did not indicate that Tavares had a serious, imminent medical condition that would warrant release on parole. The Full Board also explained that the Adult Panel was well aware of his age, program participation, absence of a prior criminal history, his participation in behavior modification, and his institutional record. Thus, reconsideration was not required.
With respect to Tavares's claim that there was no evidence to indicate a substantial likelihood that he would commit a new crime, the Full Board agreed that the punitive aspect of his sentence had been satisfied under Title 2C. It noted that eligibility for parole does not mean suitability for parole under N.J.S.A. 30:4-123.53. It explained that its decision was based on consideration of factors enumerated in N.J.A.C. 10A:71-3.11 and that the burden of proof was a preponderance of the evidence for crimes committed prior to August 19, 1997.
Finally, the Full Board found, "Despite your claim that you are remorseful and did not blame the victim, the [F]ull Board found that upon questioning, that you state that you 'lost control,' that you blame stress and blame the victim." Accordingly, the Full Board elected to affirm the Adult Panel's December 23, 2008, decision to deny parole and establish a thirty-six-month FET. This appeal followed.
Tavares raises the following issues for our consideration:
POINT I -- THE NEW JERSEY STATE PAROLE BOARD VIOLATED MY CONSTITUTIONAL RIGHTS WHEN THEY ERRED WHEN USING INACCURATE INFORMATION WHEN CONSIDERING PETITIONER'S PAROLE HEARING OF DECEMBER 23, 2008[,] AND SUBSEQUENT REVIEW HEARING'S [sic] PURSUANT TO [N.J.A.C.] 10A:71-4.2(1)(2).
POINT II -- IT IS SUBMITTED THAT I SHOULD HAVE BEEN GRANTED PAROLE OR ALTERNATIVE RELIEF BECAUSE THERE HAS BEEN NO DETERMINATION OF A SUBSTANTIAL LIKELIHOO[D] EXISTS THAT I WOULD COMMIT A NEW CRIME IF RELEASED ON PAROLE AT THIS TIME.
POINT III -- I HAVE INSIGHT AND ACCEPTED RESPONSIBILITY FOR MY CRIMINAL ACTIONS.
Our review of parole determinations is limited to an evaluation of whether the Board acted arbitrarily or abused its discretion in rendering its decision. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).
In addressing the validity of the Parole Board's denial of parole, the judicial role concentrates on three inquiries: (1) whether the agency's action violates express or implied legislative policies, i.e., did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors. Thus, we must first consider whether the Parole Board applied the correct legal standard for determining parole. Then, because the question whether there is a substantial likelihood an inmate will commit another crime if released is essentially factual in nature, we must determine whether the factual finding could reasonably have been reached on sufficient credible evidence in the whole record.
The standard of review is strongly influenced by the fact that the substantive principles governing parole do not confer a constitutional right or entitlement. However, while there is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence, there is by statute a protected expectation of parole in inmates who are eligible for parole.
We recognize that Parole Board determinations are highly individualized discretionary appraisals, and, therefore, Parole Board decisions should not be reversed by a court unless found to be arbitrary or an abuse of discretion. Nevertheless, the inherent difficulty in gauging whether a parole determination constitutes an abuse of discretion does not engender a more exacting standard of judicial review than that applicable to other administrative agency decisions. [Trantino v. N.J. State Parole Bd., 154 N.J. 19, 24-25 (1998) (citations and internal quotation marks omitted).]
We have accorded agency actions presumptions of validity and reasonableness, In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J. 306 (1994), and the burden is on the challenging party to show that the Board's actions were unreasonable, Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div. 1993), certif. denied, 135 N.J. 469 (1994).
After carefully reviewing the record in the light of the written arguments advanced by the parties, we conclude that Tavares's arguments are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We add only the following comments.
"The parole release decision . . . depends on an amalgam of elements, some of which are factual but many of which are purely subjective appraisals by the Board members based on their experience with the difficult and sensitive task of evaluating the advisability of parole release." Greenholtz v. Inmates of the Neb. Penal & Corr. Complex, 442 U.S. 1, 9-10, 99 S. Ct. 2100, 2105, 60 L. Ed. 2d 668, 677 (1979). A parole "decision turns on a 'discretionary assessment of a multiplicity of imponderables, entailing primarily what a man is and what he may become rather than simply what he has done.'" Id. at 10, 99 S. Ct. at 2105, 60 L. Ed. 2d at 677 (quoting Sanford H. Kadish, The Advocate and the Expert-Counsel in the Peno-Correctional Process, 45 Minn. L. Rev. 803, 813 (1961)).
One of these "imponderables" is a prediction of future behavior, one fraught with subjectivity, mandating broad discretion in the Board's decision-making process. Puchalski v. N.J. State Parole Bd., 104 N.J. Super. 294, 300 (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). Because of this subjectivity, parole release decisions ultimately must be made by those with experience and expertise in this field. Greenholtz, supra, 442 U.S. at 10, 99 S. Ct. at 2105, 60 L. Ed. 2d at 677; Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 368 (1973) (Sullivan, J., concurring).
Here, the Board's decision is supported by substantial facts in the record, and the Board considered all the pertinent factors set forth in N.J.A.C. 10A:71-3.11(b), as it was required to do. See McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 561 (App. Div. 2002). Tavares clearly lacks insight into why he murdered his wife. Although he is able to articulate what his wife did and the emotions he felt immediately prior to his attack, he has no insight into why he reacted so violently as opposed to, for example, asking to speak privately with his wife and telling her that he was feeling embarrassed by her comments and asking her to cease making them. With no understanding of why he reacted so violently, he will have no ability in the future to avoid repeating that behavior in a similar situation. This creates a substantial likelihood that Tavares will commit a crime in the future, a Board determination that has substantial support in the record on appeal, including the Board's confidential appendices.
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