On appeal from the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 13, 2011
Before Judges Payne and Simonelli.
Iky Coleman, who is serving an eight-year sentence with three years of parole ineligibility, imposed on April 24, 2009, for second-degree eluding a law enforcement officer in a stolen vehicle, N.J.S.A. 2C:29-2b, appeals from a Parole Board determination on July 1, 2010, denying parole and establishing a twenty-month future eligibility term (FET).
On appeal, Coleman argues that the Parole Board utilized an inapplicable standard in denying his parole request. Additionally, he claims that the evidence presented at his parole hearing did not support the Parole Board's conclusion that there was a reasonable expectation that he would violate the conditions of parole established pursuant to N.J.A.C. 10A:71-6.4(a) if released. Further, Coleman argues that his conditional release into a MAP, STEPS or Halfway-Back program was warranted in order for him to "receive/achieve the proper rehabilitation." Coleman argues:
He has complied with any/all recommendations and has remained charge free; participated in institutional programs; average to above average institutional report; attempt made to enroll and participate in programs but was not admitted; minimum custody status achieved/maintained.
Coleman, who has seven prior felony convictions, became eligible for parole for the first time on September 7, 2010. After an initial hearing before a hearing officer on May 14, 2010, the matter was referred to a two-member Board Panel on grounds of Coleman's prior extensive criminal record, his violations of probation and parole, the fact that prior imprisonment had not deterred his criminal behavior, his insufficient program participation, confidential materials, and Coleman's risk assessment. The hearing officer noted that Coleman was requesting parole to a Halfway-Back or MAP program.
The two-member Board Panel denied parole and established the twenty-month FET after considering Coleman's prior criminal record, his prior parole violation, the fact that prior probation, incarceration, and parole had not deterred his criminal behavior, insufficient problem resolution, lack of insight into his criminal behavior, an unaddressed substance abuse problem, the interview and pre-parole report, confidential materials, and a risk assessment evaluating his risk of recidivism as high. As mitigating factors, the Panel recognized that Coleman had remained infraction free in prison, had participated in institutional programs, had average to above-average institutional reports, had made efforts to enroll in programs to which he was denied admission, and had achieved minimum custody status. The FET imposed was three months less than the standard twenty-three months applicable to his crime. The Board Panel observed that Coleman "has been given numerous opportunities to no avail -- continues criminal behavior along w/ serious substance abuse issues."
On appeal, the full Board affirmed the denial of parole and imposition of the twenty-month FET in a decision on October 20, 2010. This appeal followed.
Although, on appeal, Coleman essentially contends that the Board's decision was arbitrary and capricious, and not founded in fact, we do not accept that position, but rather, conclude that the Board's position was not unreasonable, given Coleman's prior record and the likelihood of recidivism.
Because the offense for which Coleman was sentenced occurred in September 2007, his parole release is governed by provisions of N.J.S.A. 30:4-123.53(a) that provide for such release unless, by a preponderance of the evidence . . . there is a reasonable expectation that the inmate will violate the conditions of parole . . . if released on parole at that time.
As we have stated, the Board found that the risk that defendant would violate the conditions of parole was high -- a determination that we presume, in the absence of contrary evidence, to be valid and reasonable. In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J. 306 (1994). In this instance we do not find that Coleman has met his burden of demonstrating that the Board's actions were unreasonable. Bowden ...