On appeal from a final decision of the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 31, 2011
Decided Before Judges Rodriguez and Miniman.
Appellant James Hyson, an inmate currently serving a life sentence, appeals pro se from the February 24, 2010 final decision of the State Parole Board upholding a three-member panel's denial of parole and establishing a sixty-month future eligibility term (FET). This decision followed our remand of Hyson's appeal "for further consideration in light of Hyson's twenty-two year spotless institutional record." Hyson v. New Jersey State Parole Board, No. A-2693-07T2 (App. Div. April 21, 2009) (slip op.) p.1. We affirm.
These are the relevant facts. In August 1982, Hyson pled guilty to aggravated sexual assault, N.J.S.A. 2C:14-2a(3); robbery, N.J.S.A. 2C:45-1a; and burglary, N.J.S.A. 2C:18-2. The judge imposed concurrent terms aggregating life to run concurrent to any parole violation term.
The convictions were based on the following episode. In the late morning of April 19, 1982, Hyson, who was on parole for a 1974 murder conviction, struck up a conversation with the victim, a seventy-six-year-old woman, working in her yard in Millville. He offered to help her with her yard work. The victim declined his offer and walked to her house. Hyson followed her and asked for a glass of water. She told Hyson to go to an outside spigot; and that she would get a drinking glass. As the victim turned around, Hyson grabbed her from behind and forced her into the house. He then raped her. Hyson asked the victim for money. He went through the house looking for money, and took cash from the victim's purse.
The victim positively identified Hyson in a photo array. Other witnesses who saw him near the crime scene also identified him. Hyson was arrested and charged.
Hyson had a history of convictions for murder, armed robbery, aggravated assault and battery, escape, two convictions for larceny and other offenses. The murder conviction for which he was on parole at the time of the commission of the present offense, arose from these facts. On the evening of April 4, 1974, Hyson broke into the home of his next-door neighbor, a seventy-nine-year-old woman. Hyson asked the victim for money and ordered her to remove her pants. He raped her. Hyson asked the victim for money. She gave him her pocketbook, containing at least $500. Hyson left.
The following day, the victim was found dead in her home. An autopsy revealed that she had a severe heart condition and had died of a heart attack. The Medical Examiner opined that the sexual assault by Hyson was a definite contributing factor to the fatal heart attack. Hyson was arrested for murder, rape, robbery and breaking and entering. He entered a non-vult plea to the murder charge. The remaining charges were dismissed as part of a plea agreement. The judge imposed a twenty-five to twenty-seven year term. After seven years, Hyson was paroled. Four months later, Hyson committed the present offense.
Hyson became eligible for parole for the fifth time in December 2006, after serving twenty-four years and seven months. The parole hearing officer referred the matter to a Board panel. A two-member Board panel considered Hyson's case, denied parole and referred his case to a three-member panel for the imposition of an FET outside of the administrative guidelines.
The three-member panel established a sixty-month FET, basing its decision on the same factors that the two-member panel relied on. These were: extensive and repetitive criminal record; nature of offense has become increasingly serious; presently incarcerated for a multi-crime conviction; prior parole was violated for the commission of the present offense; prior opportunities on probation and parole have failed to deter criminal behavior; prior opportunities on probation and parole resulted in violations, including alcohol abuse; prior incarcerations failed to deter his criminal behavior; insufficient problem resolution and inability to deal with conflict or harboring of his problems internally; a lack of empathy and concern for others; information documented in the case file and confidential material/professional report; and lack of an adequate parole plan or a risk assessment evaluation.
The Board noted as mitigating factors that Hyson had participated in institutional programs and in programs specific to behavior; had average to above average institutional reports; had a favorable institutional adjustment, his last disciplinary infraction occurring in 1986; and Hyson achieved minimum custody status.
Hyson requested reconsideration of both the two-member and three-member panel decisions. The panels denied the request for reconsideration. Hyson appealed to the full Board. The full Board upheld the ...