September 8, 2011
ANDRELL FARRINGTON, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 August 24, 2011
Before Judges Simonelli and Espinosa.
Appellant Andrell Farrington, an inmate of the Edna Mahan Correctional Facility, appeals from the State Parole Board's denial of parole and imposition of a thirty-two-month future eligibility term (FET). We affirm.
The record reveals that following a trial in absentia on December 6, 1996, appellant was convicted of two counts of first-degree robbery, N.J.S.A. 2C:15-1; second-degree burglary, N.J.S.A. 2C:18-2; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5b; and second-degree attempted theft by extortion, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:20-5. Appellant was finally apprehended in March 2005. On January 27, 2006, she was sentenced to a ten-year term of imprisonment with three-year period of parole ineligibility.
During appellant's incarceration, she was found guilty of committing twenty-one institutional disciplinary infractions, including four asterisk offenses: .004, fighting with a person; *201, possession or introduction of an ingredient for explosives; *.005, threatening another with bodily harm; and *803-*.002, attempting to assault any person.
Appellant became eligible for parole for the second time on October 5, 2009. A two-member panel denied parole based on appellant's prior criminal record; nature of criminal record increasingly more serious; presently incarcerated for multi-crime conviction; prior incarceration did not deter criminal behavior, noting a New York City incarceration that occurred after her arrest for her present offenses but prior to her incarceration for them; institutional infractions; institutional infractions since last panel hearing were numerous, persistent, and serious in nature, and resulted in loss of commutation time and confinement in detention and administrative segregation, with the last infraction occurring on March 17, 2009; and insufficient problem resolution. Regarding her insufficient problem resolution, the panel specifically found that appellant lacks insight into her criminal behavior, minimizes her conduct, and "appears to not follow rules [and] to make up her own rules/she believes her excessive infractions result from grievances she filed, she appears to be unlikely to follow rules of parole for 5 years."
The panel considered mitigating factors, including appellant's minimal criminal record, participation in programs specific to behavior, participation in institutional programs, and her attempt, albeit unsuccessful, to enroll and participate in programs. The panel recommended that appellant participate in institutional programs geared toward criminal behavior, behavior modification, one-on-one counseling, and that she remain infraction free. The panel established a thirty-four-month FET.
Appellant administratively appealed the panel's determinations to the Board. The panel subsequently reconsidered the matter and issued an amended decision, again denying parole, but establishing a thirty-two-month FET. The panel relied on the same factors in its original decision, except it removed the following factors: appellant's prior criminal record; nature of criminal record increasingly more serious; and prior incarceration did not deter criminal behavior as reasons for the denial. The panel noted an additional reason for denial, that the "[New York City] incarceration was after the arrest for this crime but before this incarceration." The Board adopted the panel's recommendation to deny parole and establish a thirty-two-month FET.
On appeal, appellant presents the following argument for our consideration:
THE FINAL DECISION OF THE NEW JERSEY PAROLE BOARD "PANEL" SHOULD BE VACATED AND THE APPELLANT SHOULD RECEIVE A NEW HEARING WITH REVIEW AND CONSIDERATION OF THE CORRECT AGGRAVATING FACTORS THAT ARE APPLICABLE.
We have considered this in light of the record and applicable legal principles and conclude it is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we make the following brief comments.
Our Supreme Court has held that the Board's "decisions are highly 'individualized discretionary appraisals.'" Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (Trantino II) (citation omitted). "Accordingly, the Board 'has broad but not unlimited discretionary powers,' and its determinations 'are always judicially reviewable for arbitrariness.'" Ibid. (citation omitted). The Board's decisions "depend on an amalgam of elements, some of which are factual but many of which are purely subjective appraisals by the Board members based upon their experience with the difficult and sensitive task of evaluating the advisability of parole release." Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 10, 99 S. Ct. 2100, 2105, 60 L. Ed. 2d 668, 677 (1979). As the Court observed, parole boards assess "'multiplicity of improbables, entailing primarily what a man is and what he may become rather than simply what he has done.'" Ibid. (citation omitted).
In examining the record in light of the argument raised, we are satisfied that the Board adhered to these principles and its own guidelines in rendering the final decision. The Board's findings were based "'on sufficient credible evidence in the whole record[,]'" Trantino v. N.J. State Parole Bd., 154 N.J. 19, 24 (1998) (Trantino I) (quoting N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.), certif. denied, 111 N.J. 649 (1988)), and are entitled to our deference, see Trantino II, supra, 166 N.J. at 121-22. In its application of those facts, we find nothing arbitrary or capricious in the Board's determination to deny parole and establish a thirty-two-month FET.
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