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R.T.S., Sr v. New Jersey State Parole Board

May 9, 2011

R.T.S., SR., APPELLANT,
v.
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.



On appeal from the New Jersey State Parole Board.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 5, 2011

Before Judges Parrillo and Yannotti.

R.T.S., Sr. appeals from a final determination of the State Parole Board (Board) dated February 24, 2010, which denied parole and established a twenty-four month future eligibility term (FET). We affirm.

In 2001, after a trial before a jury, R.T.S., Sr. was convicted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a); second-degree sexual assault, N.J.S.A. 2C:14-2(b); and endangering the welfare of a child, N.J.S.A. 2C:24-4(a). Appellant's granddaughter was the victim of these offenses. The court sentenced appellant to an aggregate term of sixteen years of incarceration, and imposed community supervision for life pursuant to Megan's Law, N.J.S.A. 2C:7-1 to -21. Appellant first became eligible for parole in 2006; however, parole was denied.

Appellant again became eligible for parole in 2009. A hearing officer conducted the initial parole interview. The hearing officer referred the matter for further review by a two-member Board panel because: referral was mandatory under N.J.A.C. 10A:71-3.15(b); the offenses of which appellant had been convicted were serious; appellant was incarcerated as a result of a multi-crime conviction; a prior opportunity for probation had not deterred further criminal behavior; appellant had violated probation in the past; he had participated in institutional programs but they were not "symptom specific"; he had not taken certain programs previously recommended by a Board panel; and during the interview, appellant had denied he committed the offenses.

The two-member Board panel conducted its hearing on September 28, 2009, and decided to deny parole and establish a twenty-four month FET. The panel noted the following factors in support of its decision: appellant had a prior criminal record; his criminal record had become increasingly more serious; he was incarcerated for a multi-crime conviction; a prior opportunity for probation failed to deter criminal behavior; he had violated probation in the past; he had been found guilty of an institutional infraction that was serious in nature and resulted in the loss of commutation credits; and there had been insufficient problem resolution on his part, including a lack of insight into his criminal behavior, a denial that he committed the crimes for which he is incarcerated and minimization of the conduct involved. As mitigating factors, the panel noted that appellant had participated in institutional programs; attempted to enroll and participate in other programs but was not admitted; and his lost commutation time had been restored.

The panel determined that parole should be denied because there was a reasonable expectation that appellant would violate the conditions of parole if released at this time. Appellant filed an administrative appeal to the full Board. He asserted that the panel failed to document its decision by a preponderance of the evidence. He also asserted that the panel had erroneously denied his application for parole because he did not participate in a behavior modification program.

The Board considered the matter on February 24, 2010, and voted to affirm the panel's decision. The Board issued a written decision dated February 24, 2010. The Board rejected appellant's appeal, noting that the panel had not cited appellant's failure to take a behavioral modification program as a specific reason to deny parole. The Board found that the panel had considered all of the relevant information as required by N.J.A.C. 10A:71-3.11 and had fully documented its reasons for denying parole, pursuant to N.J.A.C. 10A:71-3.18.

The Board further found that the panel had properly determined, based on a preponderance of the evidence, that appellant would violate the conditions of parole if released on parole at this time. The Board therefore affirmed the panel's decision to deny parole and establish a twenty-four month FET. This appeal followed.

Appellant raises the following arguments for our ...


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